1-2. Treaty Obligation from the Protestant Reformation to 1919: Parts 1-2 "Introduction" and "Treaty as a Legal Source"

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.

PART 1: INTRODUCTION

Twentieth-century international law places special emphasis on the treaty as a legal source and insists that treaty obligations are legally binding.  However, Cambridge University Professor of International Law Clive Parry (1917-1982) significantly told his students that the moral or "natural law" requirement to keep treaty promises was in the 19^th century commonly considered to be binding in honour alone.  He also argued that before 1914 publicists and diplomatists tended to exclude treaties from the ambit of international law which, he said, was then perceived to be primarily customary.^[1]  This study will test the validity of Parry’s thesis via an examination of treaty obligation from the 16th-century Protestant Reformation to the 1919 Paris Peace Conference that brought an end to the First World War.  Particular attention will be paid to the meaning of “honour” and its significance for the European States' system that gave rise to the law of nations.

Also on this website is an earlier published study showing that, in the Middle Ages, the moral or "natural law" requirement to keep treaty promises was binding in canon law by virtue of the pope’s jurisdiction over solemn oaths, then invariably used to guarantee the fulfilment of agreements.^[2]  As Christians, treaty-breaking kings were subject to the papal court “by reason of sin,” in this instance the very grave canonical offence of perjury.  However, in the early 16th century the Protestant Reformation destroyed Christendom’s legal unity, thereby setting the stage for the gradual development of the classical system of international law.^[3]  As in the Middle Ages, lawyers continued to intone pacta sunt servanda (agreements are to be kept).^[4]  But the post-medieval framework lacked a legal remedy for breach of treaty.  Here, it will be demonstrated that for four hundred years, the moral or "natural law" requirement to keep treaty promises was deemed to be 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 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 twentieth-century discourse about treaties as legally binding.

PART 2: THE TREATY AS A LEGAL SOURCE

Today public international law is understood as being customary, conventional (i.e. treaty-based), or both.^[5] Setting out the law for deciding cases, the Statute of the Permanent Court of International Justice in 1920 significantly gave “international conventions” pride of place “as the rules expressly recognized by the contesting states.”^[6] However, the rather exceptional importance now accorded to treaties as a legal source is not limited to the cases of the Permanent Court or to those of its successor, the International Court of Justice (ICJ). Thus, Whewell Professor of International Law at Cambridge University and then ICJ judge, Sir Robert Yewdall Jennings (1913-2004) had earlier opined:

The law-making treaty is by far the most important source of general international obligation, and the term ‘international legislation,’ which has been freely applied to this process of law-making by treaty, is doubtless justified both by the close analogy to the legislative processes of domestic law and by the importance and volume of its achievement.^[7]  

Previous centuries also saw the distinction between customary law and rules embodied in treaties.^[8]  However, from the 16th-century Protestant Reformation to 1919-1920, treaties were seldom considered to be the best source or evidence of the law of nations for a variety of reasons, including:

• long dominance of the municipal analogy which stubbornly compared treaties to the bilateral contracts of private persons;
• relatively late debut of the multilateral treaty which was precondition for the law-making treaty as procedure analogous to legislation domestically;
• long lack of readily available, published collections of treaties;
• general understanding that the moral or "natural law" requirement to fulfill treaty promises was not legally binding; and
• absence of permanent international arbitral or judicial institutions to support anything like the current focus on inter partes litigation.

Early exponents ignore treaties as legal source?

The treaty was not valued as a legal source by founders like Francisco Suárez (1548-1617) and Hugo Grotius (1583-1645) who saw the positive law of nations as essentially customary.^[9]  As evidence of international custom, the “teachings of the most highly qualified publicists” then received more emphasis than treaties.  According to Grotius:

The proof for the law of nations is similar to that for unwritten municipal law; it is found in unbroken custom and the testimony of those who are skilled in it. The law of nations, in fact, as Dio Chrysostom well observes, ‘is the creation of time and custom.’  And for the study of it the illustrious writers of history are of the greatest value to us.^[10]

This early failure to highlight treaties as a legal source is partly explicable by the virtual absence of study material until some treaty collections were published towards the late 17^th century.^[11] An example is the Codex iuris gentium of German polymath Gottfried Wilhelm von Leibniz (1646-1716).  He insisted that treaties are invaluable for understanding both history and international law — a belief held despite his view of “the weakness of paper chains” made by “rulers [who] play cards in private life and with treaties in public affairs.”^[12]  However, empiricism was not the methodology favoured by contemporary jurists who relied on English philosopher Thomas Hobbes (1588-1679) for the axiom that “the law of nature and the law of nations is the same thing.”^[13] 

Apart from a few basing “the law of nations upon natural law as modified by usage and express compact,”^[14] the prevailing trend was represented by German historian and jurist Samuel Pufendorf (1632-1694), for whom State practice did not create norms.^[15]  So fully did he identify international law with natural law that logically no room remained for treaties as a legal source:

As for those persons who rank under the law of nations, the particular compacts of two or more States, concluded by leagues and treaties of peace, to us their notion appears very incongruous.  For although the law of nature in that part of it concerning the keeping of faith, doth oblige us to stand to such agreements; yet the agreements themselves cannot be called laws, in any propriety of speech or of sense.  Besides they are almost infinite in number, and commonly are settled only for a time.  Nor do they any more constitute a part of law in general, than the covenants and bargains of particular subjects with each other, do belong to the body of the civil law of the kingdom: but they are rather to be esteemed the subject and the concern of history.^[16]

German philosopher and mathematician Christian Wolff (1679-1754) was hardly more accommodating to treaties:

The stipulative law of nations has its equivalent in the private law of citizens, because it has its origins in their agreements.  Therefore just as the private law for citizens, derived from agreements entered into between themselves, is considered as having no value at all as civil law for a certain particular state, so also the law for nations, derived from agreements entered into with other nations, it seems cannot be considered as the law of nations.^[17]  

Similar was the view of Swiss jurist Emmerich de Vattel (1714-1767):

The different engagements into which States can enter, produce a new kind of law of nations which is called ‘conventional’ or ‘of treaties’.  Since it is evident that a treaty only binds the contracting parties, the conventional law of nations is not at all a universal law, but rather a particular law.  All that can be done with this subject matter in a treatise on the law of nations, is to provide the general rules which States must respect with regard to their treaties. The details of the different agreements which are concluded among specific States, and the resulting rights and obligations, are matters of fact which belong to the realm of history.^[18]

Treaties fare better with empiricists?

Although Vattel was widely read on both sides of the Atlantic, natural law was even then beginning to lose its stranglehold. Voltaire “derided Grotius, Pufendorf, Vattel and other natural lawyers as bores, mediocrities and imitators.”^[19]  Dutch jurist Cornelius van Bynkershoek (1673-1743) pointed to the future in tempering naturalism with a positivism that sought international custom in recent State practice rather than in the examples from antiquity that studded Grotius’ writing.^[20]   


Bynkershoek doffed his cap to natural law in saying that “reason is the soul of the law of nations” and in saluting “the dictates of reason, whose authority is so great in defining the laws of nations.”^[21]  However, he cautiously identified treaties as an element of State practice that could, if sufficiently consistent, constitute customary law:

The rule of custom may be learned from the almost unbroken practices in treaties and edicts, for sovereigns have often made such regulations [about contraband] by treaties with a view to a possible outbreak of war, and also by edicts after war has broken out.  I said ‘almost unbroken practices’, for one or two treaties which vary from the general usage do not alter the law of nations.^[22]    

Bolder were French prelate and publicist Gabriel Bonnot de Mably (1709-1785) and German jurist Georg Friedrich von Martens (1756-1821). They took an even sharper empiricist turn in trying to use treaties as evidence of the “public law of Europe,” a notion that is somewhat different from that of international law.^[23]  According to Mably:

Everyone knows that treaties are the archives of nations; that they embody the title deeds of all the peoples, the reciprocal engagements which bind them, the laws which they have imposed upon themselves, the rights which they have acquired or lost.^[24] 

Saluting the compilers of the great collections, Mably undertook — but did not complete — the more difficult analytical task of comparing same-subject-matter treaties and extracting from them stipulations which “acquire among the nations the same authority as the civil law among citizens of the same State.”^[25]  


Similarly, Martens in 1788 put treaty collections in first place among the “books necessary to those who study the Law of Nations.”^[26]  He too believed that:

by comparing the treaties that the powers of Europe have made with one another, we discover certain principles that have been almost universally adopted by all the powers that have made treaties on the same subject.^[27]  [...] Analogy often forms the basis of decisions in the affairs of nations.  It is no more than the application of what has been determined by treaty or custom in certain cases, to other cases which resemble them.^[28]

British parliamentarian and political writer Edmund Burke (1729-1797) rhapsodized about treaties as the public law of Europe:

All this body of old conventions, composing the vast and voluminous collection called the corps diplomatique, [which] forms the code or statute law, as the methodized reasonings of the great publicists and jurists form the digest and jurisprudence of the Christian world.^[29]  

Similarly, Scottish physician, barrister and publicist Sir James Mackintosh (1765-1832) taught Lincoln’s Inn law students that no man can be master of the “law of Europe” without being acquainted with “the treaties which have materially affected the distribution of power and territory among the European states.”  He pointed to the “diplomatic and conventional law of Europe... as an important supplement to the practical system of our modern law of nations, or rather as a necessary part of it,” introducing principles into “the public code of the Christian commonwealth.”^[30]

After the Napoleonic Wars, German public lawyer Johann Ludwig Klüber (1762-1837) ranked treaties first among legal sources.  Conceding the absence of treaties common to all European States, he followed Mably and Martens in asserting that international law could be distilled from identical treaty provisions and derived by analogy based on the principles expressed therein.^[31]  


Significantly, this tradition passed via Swiss jurist Johann Kaspar Bluntschli (1808-1881)^[32] to future USA President Woodrow Wilson who, as a Princeton University law professor, put treaties at the centre of his conception of international law.^[33]  In 1889, Wilson paid tribute to writers like Grotius and Vattel for their statement of “almost self-evident principles” (i.e. natural law), but then he went on to opine that international law’s:

only formal and definite foundations... are to be found in the treaties, by which states, acting in pairs or in groups, have agreed to be bound in their relations with each other, and in such principles of international action as have found their way into the statutes or the established judicial precedents of enlightened individual states.  More and more international conventions [sic] come to recognize in their treaties certain elements of right, of equity, and of comity as settled, as always to be accepted in transactions between nations.^[34]

 

Late birth of the multilateral treaty

Although empiricists tried to elevate the treaty’s importance as legal source, the bulk of classical international law remained stubbornly customary.^[35]  This is partly explained by the slow gestation of the multilateral treaty which was not born till the 1815 Final Act of the Congress of Vienna.^[36]  For example, the dozen or so States waging the War of the Spanish Succession, ended the conflict with more than twenty treaties (1713-1714).^[37]  Even after the mid 19^th century, when the multilateral treaty had already taken significant steps as a device pregnant with legislative potential, some governments remained cool to using it to systematize and clarify existing international law.  Thus, an invitation to accede to the 1864 Geneva Red Cross Convention received a reply stating that “it has always been deemed at least a questionable policy, if not unwise, for the United States to become a party to any instrument to which there are many other parties.”^[38]  This 1868 position underlines the point that, up to that time, only very limited use had been made of the multilateral treaty “as a vehicle for bringing about a transformation in the nature and range of international law.”^[39]  


Against this background, many jurists remained comfortable with a tradition that deprecated treaties as a source of international law.  This is significant because, in the period before the First World War, the treaty’s juridical defects directly limited the ability of States to develop international law and create general permanent institutions like the League of Nations, the United Nations and the World Court.

Did Europe and Britain differ on treaties?

Beginning in the 18^th century, there was a divergence between British and European views of the treaty’s status as a source of law.  Until the Crimean War and the 1856 Paris Declaration on Maritime Law, Britain — as paramount naval power — wished to abide by the customary Consolato del mare which allowed wartime seizure of enemy goods aboard neutral ships on the high seas.^[40]  However, France which had been seizing neutral ships for carrying enemy goods, in the 1780's joined the USA and other countries in treaties stipulating “free ships free goods.”^[41]  British lawyers reacted with vigorous defence of the Royal Navy’s wartime right to search for enemy goods aboard neutral ships on the high seas.  For the sources and evidence of international law, British lawyers tended to emphasize custom and deprecate treaties, partly because they wished to avoid the effect of these foreign treaties prohibiting belligerents from searching neutral vessels on the high seas.  In the 1801 edition of his 1758 monograph on the right of maritime search, the 1^st Lord Liverpool (1729-1808) rejected the “floating sovereignty” propounded by French theorists:

These enemies and rivals of the naval power of Great Britain have entered into treaties, laying down certain rules which they wish to have observed, and to the observance of which they think they have a right to compel Great Britain, though no party to them.^[42]

British critique of treaties as legal source?

  

Scottish advocate and Glasgow judge James Reddie (1773-1852) exhibited a caution fairly representative of the British Isles.  He specifically faulted Mably, Martens and Klüber for allegedly reducing the study of international law to collecting, arranging and abstracting stipulations from two hundred years of treaties.  He insisted that treaties are only binding between the parties as particular law:

Learned and industrious men... may collect from the great numbers of treaties which have been concluded among civilised nations the usual subjects of stipulation, and may, by arranging and classifying the rules so stipulated, produce a systematic work, binding and obligatory upon the contracting parties, so far as the treaties out of which it is compiled are still in existence or force; and such a compilation may, no doubt, be otherwise useful historically.  But it is vain to maintain that in this way any code of international law can — consistently with sound legal principle or accurate logical deduction — be reared up or created, such as to be binding upon the nations who are not parties to the treaties, or even upon the contracting parties, after those treaties have expired from lapse of time, or ceased, from other legitimate causes, to be legally obligatory.^[43]

Sir William Harcourt (1827-1904) was an Inner Temple barrister.  Before becoming Cambridge University’s Whewell Professor of International Law and then Solicitor General, he penned a sharp critique of French publicist Laurent Basile Hautefeuille (1805-1875), said to see the common law of nations wrongly as almost exclusively derived from treaties:

Hautefeuille will take a single treaty or a batch of treaties, and finding in them certain stipulations, will conclude that these clauses are declaratory of the common law [of nations].  The reasonable conclusion is exactly the opposite.  The stipulations were introduced because without them the common law [of nations] would take a different disposition.  It would be as reasonable to assert that the statute book is the source of the common law [of England], where as a general rule, its enactments are in derogation of that law.  Instead of the conventional law of treaties being the common, it is, in fact, the exceptional law of nations.^[44]

Edinburgh University Professor of Public Law, James Lorimer (1818-1890) also took a cautious view of the treaty’s role:

No single treaty can have the value of a well established custom as a guide to our knowledge of the law of nations, either in itself, or as interpreted by the international consciousness of a particular epoch.  A treaty indicates only what the parties to it have consented to hold as the relations subsisting between themselves at the period of contracting it, and, inasmuch as this consent may have been brought about, not by the coincidence of reason and ultimate will, but by violence and selfishness on the one side, and fear or stupidity on the other, it is quite possible that a treaty may not have the value even of an isolated and temporary instance of international understanding.  It may never have been carried out at all, either on the ground that one of the parties to it promised what was impossible, or what he had no intention of performing, except under the continuance of the compulsitor with which he had agreed to dispense.^[45]

A priest and international law professor at both Cambridge and the University of Chicago, Thomas Lawrence (1849-1919) was also skeptical about treaties as a legal source: 

There is a great difference of opinion among writers of International Law as to whether treaties are properly speaking part of that law.  The common English view is that most treaties merely register a bargain between the contracting parties, each surrendering something to the other, in order to gain from the other something else he deems more important.  On the other hand, a school of Continental publicists exalt treaties into a corpus of International Law, ascribing to them, or rather to a number of them arbitrarily selected because they set forth special views, a transcendental and altogether fictitious importance.^[46] 

However, Lawrence cautiously recognized: “If treaties which really legislate are few, treaties which really declare the law are fewer.”[47]  And later, he emphasized:

Some treaties, but very few, become after a greater or less time, Sources of Law.  But the vast majority of treaties are valueless as evidence of what the law is, though they may be of the highest importance as creating new political arrangements or removing old subjects of contention.[48]

Lincoln’s Inn barrister and legal writer William Edward Hall (1835-1894) was equally reluctant to recognize the “claim to exceptional reverence” of  the “so-called conventional law.” With the exception of the then very few treaties specifically “declaratory of law as understood by the contracting parties,” Hall thought their value was not “as a source of law, but because they show the flow and ebb of opinion, and its strength at a given time with reference to particular doctrines or practices.”  Conceding that “treaties are usually allied with a change of law,” he insisted that “they have no power to turn controverted into authoritative doctrines.” ^[49] 


As Whewell Professor of International Law at Cambridge University, John Westlake (1828-1913) respected the centuries-old understanding that international law derives from reason and custom, the latter including treaties as evidence of the “practice of states.”  However, he cautioned that treaties are “so often concluded with a view to particular circumstances that great care must be taken in using them as evidences of international law.”^[50]

Notes to Parts 1 and 2

---

1.  Clive Parry, “Foreign Policy and International Law,” in British Foreign Policy Under Sir Edward Grey, ed. Sir Francis Harry Hinsley (Cambridge, 1977), 89-110, 558-559.

2.  Allen Z. Hertz, “Medieval Treaty Obligation,” Connecticut Journal of International Law, vol. 6, Number 2 (1991), 425-443. A version without footnotes is available as a November 2009 posting at www.allenzhertz.com

3.  Garrett Mattingly, Renaissance Diplomacy (Harmondsworth, 1965), Ch. 28: “Law Among Nations,” 269-281; ibid., 275: “After mid-century [1550], large areas of Northern and Western Europe revolted from the Roman canon law altogether, or at least from all that part of it which had helped to underpin the public law of the Latin West.  It became useless for publicists to appeal to the sanctions of the Church to guarantee treaties or protect ambassadors, or to mitigate the horrors of war.”

4.  Manfred Lachs, “Pacta Sunt Servanda,” in Encyclopedia of Public International Law, dir. Rudolf Bernhardt, vol. 7 (Amsterdam-New York, 1984), 364-371; Arnold Duncan, Lord McNair, The Law of Treaties (Oxford, 1961), 493-494.

5.  Oscar Schachter, “Entangled Treaty and Custom,” in International Law at Time of Perplexity: Essays in Honour of Shabtai Rosenne, ed. Yoram Dinstein and Mala Tabory (Dordrecht, 1989), 717-738.

6.  Statute of the International Court of Justice, Article 38(1)(a).

7.  Sir Robert Y. Jennings, The Progress of International Law: An Inaugural Lecture (Cambridge, 1960), 27; but see also Jennings, “Treaties as ‘Legislation’,” in Jus et Societas: Essays in Tribute to Wolfgang Friedmann, ed. Gabriel M. Wilner (The Hague, 1979), 159-168.

8.  Custom was sometimes called the “common law” of nations, see James Reddie, Inquiries in International Law Public and Private, 2nd ed. (Edinburgh, 1851), 234.

9.  Charles S. Edwards, Hugo Grotius the Miracle of Holland: A Study in Legal and Political Thought (Chicago, 1981), 71-113.

10.  Hugo Grotius, De jure belli ac pacis libri tres, in Classics of International Law, ed. James Brown Scott, vol. 2: On the Law of War and Peace Three Books, trans. Francis W. Kelsey et al. (New York, 1925), Bk. I, Ch. 1, § 14(2):44.

11.  Antonio Truyol y Serra, “Geschichte der Staatsvertäge und Völkerrecht,” in Internationale Festschrift für Alfred Verdross zum 80. Geburtstag (München and Salzburg, 1971), 509-522, at 513; Clive Parry, “Of Treaties,” in Multum Non Multa: Festschrift für Kurt Lipstein aus Anlaß Seines 70. Geburtstages, ed. Peter Feuerstein and Clive Parry (Heidelberg-Karlsruhe, 1980), 221-239, at 225-226.

12.  Preface to Codex iuris gentium (1693), in Leibniz: Political Writings, trans. Patrick Riley, 2nd ed. (Cambridge, 1988), 165-170.

13.  Thomas Hobbes, Leviathan, ed. Herbert W. Schneider (Indianapolis-New York, 1958), Part 2, Ch. 30, 276-277.

14.  Henry Wheaton, History of the Law of Nations in Europe and America from the Earliest Times to the Treaty of Washington, 1842 (New York, 1845), 105; possibility of “all or most peoples” agreeing to a conventional law of nations raised by Johann Wolfgang Textor, Synopsis juris gentium, in Classics of International Law, ed. Ludwig von Bar, vol. 2: Text of 1680 trans. John Pawley Bate (Washington, 1916), Ch. 1, §§ 21 and 24:6-7.

15.  Samuel Pufendorf, Of the Law of Nature and Nations, Eight Books, ed. Basil Kennett, 2nd ed. (Oxford, 1710), Bk. II, Ch. 3, § 22:121-123.

16.  Ibid., 123.

17.  Christian Wolff, Jus gentium methodo scientifica pertractatum, in Classics of International Law, ed. Otfried Nippold (Oxford, 1934), Vol 1: Facsimile of 1764 Latin Ed.; Vol 2: Trans. Joseph H. Drake, Prolegomena, § 23:18.

18.  Emmerich de Vattel, Le Droit des gens ou principes de la loi naturelle appliqués à la conduite et aux affaires des nations et des souverains, in Classics of International Law, Facsimile of 1758 ed., intro. Albert de la Pradelle & trans. Charles G. Fenwick (Washington, 1916), vol. 1, Préliminaires, § 24:13 (French); vol. 3, Introduction, § 24:8 (English); though rejecting the treaty as a legal source, Vattel studded his work with countless treaty references, see Vattel, Le Droit des gens ou principes de la loi naturelle appliqués à la conduite et aux affaires des nations et des souverains, vol. 3: Notes et General Analytical Tables, by M.S. Pinheiro-Ferreira (Paris, 1838), Introduction, § 24:22-23.

19.  Peter Gay, The Enlightenment: An Interpretation, vol. 2 (New York, 1969), 459.

20.  J.L. Brierly, The Law of Nations: An Introduction to the International Law of Peace, 6^th ed., ed. Sir Humphrey Waldock (Oxford, 1963), 36-37.

21.  Cornelius van Bynkershoek, Qaestionum juris publici libri duo, in Classics of International Law, Facsimile of the 1737 Latin ed., intro. J. de Louter and trans. Tenney Frank (Oxford, 1930), vol. 2: Trans., Bk. I, Ch. 2:20-21.

22.  Ibid., Bk. I, Ch. 10:67; for refusal to rest the law on a handful of treaties, see Bk. I, Ch. 12:79-80.

23.  Gabriel Bonnot de Mably’s Droit public de l’Europe, fondé sur les traités (1747) is more descriptive than prescriptive, see Oeuvres complètes de l’Abbé de Mably, vols. 7-10 (Toulouse-Nîmes, 1793); “public law of Europe” was used for Europe’s States’ system or constitution, i.e. for something geographically narrower and more political than “natural” or “international law,” see Frederick Gentz, On the State of Europe Before and After the French Revolution, trans. John Charles Herries, 2^nd ed. (London, 1803), 365, n. A; “questions affecting the great public law of Europe” were for the five Great Powers sitting alone, see Foreign Secretary Lord Malmesbury, Apr. 18, 1859, Lords, Parl. Deb., 3^rd ser., vol. 153:1836.

24.  Droit public de l’Europe, in Oeuvres de Mably, vol. 7:219.

25.  Ibid., 219-220; Mably’s work is not what would be regarded today as a legal study, but rather an historical commentary on post-1648 political and trade treaties, see Sir F. H. Hinsley Power and the Pursuit of Peace: Theory and Practice in the History of Relations Between States (Cambridge, 1963), 166.

26.  Georg Friedrich von Martens, A Compendium of the Law of Nations, Founded on the Treaties and Customs of the Modern Nations of Europe, trans. William Cobbett (London, 1802), Introduction, § 8:11.

27.  Ibid., Introduction, § 3:3-4.

28.  Ibid., Bk. II, Ch. 2, § 5:63.

29.  Letters on a Regicide Peace, in The Works of Edmund Burke (New York, 1859), vol. 2: 254.

30.  “A Discourse on the Law of Nature and Nations,” in The Miscellaneous Works of the Right Honourable Sir James Mackintosh, vol. 1 (London, 1846), 341-387, at 384-385.

31.  Jean-Louis Klüber, Droit des gens moderne de l’Europe, vol. 1 (Paris, 1831), § 3:5-6.

32.  Johann Kaspar Bluntschli, El Derecho internacional codificado, trans. José Diaz Covarrubias (Mexico City, 1871), Introduction, 3-4; Bk. I, § 13:69.

33.  Paying less attention to treaty law per se than to the “principles of law established by the great international conventions,” Wilson taught (1891-1894) international law to Princeton students, see The Papers of Woodrow Wilson, ed. Arthur S. Link (Princeton, 1966-1994), [hereinafter cited as PWW], vol. 7:5-7, 453-457; vol. 8:381-383.

34.  The State (New York, 1889), §§ 1216-1217, reproduced in PWW, vol. 6:280-281.

35.  J.G. Starke, Introduction to International Law, 10^th ed. (London, 1989), 16, 18, 35-36.

36.  Act of the Congress of Vienna, signed between Austria, France, Great Britain, Portugal, Prussia, Russia and Sweden, 9 June 1815, The Consolidated Treaty Series, [hereinafter CTS], ed. Clive Parry (Dobbs Ferry, New York, 1969-1981), vol. 64, 453-493; Krystyna Marek, “Contribution à l’étude de l’histoire du traité multilatéral,” in Festschrift für Rudolf Bindschedler (Berne, 1980), 17-39; Paul Reuter, Introduction au droit des traités (Paris, 1972), 14.

37.  CTS, vols. 27-29; H.G. Pitt, “The Pacification of Utrecht,” in The New Cambridge Modern History, vol. 6: The Rise of Great Britain and Russia, 1688-1715/25, ed. J. S. Bromley (Cambridge, 1970), 446-479.

38.  Quoted by Manley O. Hudson, International Tribunals: Past and Future (Washington, 1944), 109; Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, signed at Geneva, 22 August 1864, in CTS, vol. 129:361-367; USA accession 1882.

39.  Jennings, Progress of International Law, 27; Paul C. Szasz, “General Law-Making Processes,” in United Nations Legal Order, ed. Oscar Schachter and Christopher C. Joyner (Cambridge, 1995), vol. 1:35-108, at 40: “At the beginning of the modern era of international law, at the time that the League of Nations was founded, there were only a handful of significant multilateral treaties that could be characterized as ‘law-making’.”

40.  D.P. O’Connell, The Influence of Law on Sea Power (Manchester, 1975), 19; Georg Schwarzenberger, “International Law in Early English Practice,” British Yearbook of International Law 1948, 52-90, at 78-80; for “free ships, free goods,” see Mar. 2, 1877, Commons, Parl. Deb., 3^rd ser., vol. 232:1262-1343; Declaration respecting Maritime Law between Austria, France, Great Britain, Prussia, Russia, Sardinia and Turkey, signed at Paris, 16 April 1856, in CTS, vol. 115:1-3, Article 2: “Le pavillon neutre couvre la marchandise ennemie, à l’exception de la contrebande de guerre.”

41.  Lawrence’s Wheaton, 736-819; Wheaton said the 1713 Utrecht Treaty established “free ships free goods” as the inter se rule for Britain, France and Holland until “swept away from the European code of public law” by the 1792 war with Revolutionary France, see Enquiry into the Validity of the British Claim to a Right of Visitation and Search of American Vessels Suspected to be Engaged in the African Slave-Trade (Philadelphia, 1842), 22.

42. Charles Jenkinson, 1^st Lord Liverpool, Discourse on the Conduct of the Government of Great Britain in Respect to Neutral Nations, Written in the Year 1758 (Edinburgh, 1837), 1801 preface, 5; “free ships free goods”refuted by John Charles Herries, in Gentz, On the State of Europe, May 1802 translator’s preface, viii-xciii, and 366, n. A.

43.  Reddie, Inquiries, 234-236, 259.

44.  Sir William Vernon Harcourt, Letters by Historicus on Some Questions of International Law (London-Cambridge, 1863), 77-78; for a successful argument that treaties are the “exceptional” law of nations, see Sir Hersch Lauterpacht, The Development of International Law by the International Court, 2^nd ed. (London, 1958), 377-379.

45.  James Lorimer, The Institutes of the Law of Nations, vol. 1 (Edinburgh-London, 1883), 37.

46.  Thomas Joseph Lawrence, Essays on Some Disputed Questions of International Law (Cambridge, 1884), 25; for the 19^th century debate on the treaty as source of international law, see Sir Travers Twiss, The Law of Nations, 2^nd ed. (Oxford, 1884), 164-174.

47.  Thomas Joseph Lawrence, The Principles of International Law, 3^rd ed. (Boston, 1905), § 68: 97.

48.  Ibid., § 68:100; for Russian jurists, see G.I. Tunkin, Theory of International Law, trans. William E. Butler (Cambridge, Mass., 1974), 91-93.

49.  William Edward Hall, A Treatise on International Law, 4^th ed. (Oxford, 1895), 7-13.

50.  John Westlake, International Law, Part 1: Peace, 2nd ed. (Cambridge, 1910), 14, 16, and Chapters on the Principles of International Law (Cambridge, 1894), 83.

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.