International Treaties

INTERNATIONAL TREATIES. — In the broad sense, a treaty is any legal act concluded between two or more States or other subjects of international law. Treaties constitute the principal source (for legal positivism, the sole source) of international law. They perform, servatis servandis, in the international sphere the same function that positive legislation performs in the sphere of private and public law in relation to natural law.

They originate in the concordant will of two States, since there does not yet exist in the international sphere an authority capable of legislating effectively for all the nations living in human society.

1. DOCTRINE OF INTERNATIONAL TREATIES

2. Form

Although history records some purely oral conventions, concluded by heads of State among themselves and strictly observed, agreements between States almost always take written form; and even when concluded orally, they are subsequently, more or less rapidly, transformed into written documents (e.g., the Laval–Mussolini agreements concerning Ethiopia in 1935). The solemn bilateral or collective documents that record agreements between States are precisely international treaties, which take various names (agreements, conventions, pacts, protocols, etc.) and are drawn up according to a technique that will be discussed below.

3. Distinctions

According to a doctrine that was much debated for some time (and is still affirmed by some, e.g., Ottolenghi), a distinction is made between treaties-agreements (Vereinbarung) and treaties-contracts (Vertrag). The former would exhibit a certain parallel with domestic laws, bringing about the fusion of several wills having identical content; such would be all treaties, for example, those codifying international law, or those creating administrative unions or institutions. The latter, on the other hand, would parallel contracts, insofar as they result from the meeting of two or more wills having different content (e.g., the sale or cession of a territory, an undertaking to make specified supplies under specified conditions, etc.). The distinction may now be said to have been almost entirely abandoned, the prevailing view being that all treaties constitute a single category,

based on the meeting of the wills of the contracting States for the attainment of a specific purpose.

4. Parallelism between international treaties and private conventions

The parallelism between an international convention and one concluded between private persons has given rise to a tendency to regulate the former on the basis of the latter; from this parallelism there is also derived the generally accepted definition of international treaties as agreements between two or more States for the purpose of establishing, modifying, or dissolving a legal relationship between them. Without denying the parallelism of the situations, and consequently of the rules governing them, the analogy must nevertheless not be extended to extremes. This being premised, it is necessary to determine: a) the requirements for the existence of international conventions; and b) those for their validity, in order then to ascertain c) the ensuing legal effects, provided that those requirements exist.

5. Existence of international treaties

For an international convention to exist, there must be two or more contracting parties (bilateral, plurilateral, or collective conventions), and they must possess the international legal capacity qualifying them to conclude agreements and assume obligations of an international order. Accordingly, this category includes not only States possessing full international legal capacity (what agreements may be concluded by a protected or vassal State, or by a State subject to trusteeship administration, is determined by the agreement governing its relations with the protecting or administering State), but also those entities to which international legal personality belongs or is recognized.

6. Validity of international treaties

Not every manifestation of will by a capable subject is legally sufficient to produce a binding obligation (apart from considerations of morality or propriety); the will must be precise and determinate and must not be vitiated by mistake, violence, or fraud, as in contracts. That a mistake capable of invalidating a manifestation of will may occur is shown by certain characteristic examples, such as the mistake made by the USA and the United Kingdom when they accepted the content of letter A of art. 23 of the Fifth Hague Convention of 18 October 1907, believing that it had a meaning entirely different from that attributed to it by the other contracting parties. Fraud is not a frequent occurrence, but it is not impossible. The requirement of violence deserves special consideration, and classical historical examples are not lacking. If the concept of violence in international conventions were interpreted strictly, all, or at least almost all, peace treaties would have to be invalidated, since there has almost never been a defeated party that welcomed the clauses of a peace treaty, accepted or endured under the threat of renewed military operations, in unequal conditions, or of military occupation. Consequently, even when fear has been unjustly induced, many consider the treaty valid for the defeated signatory, not through the intrinsic force of the pact, but propter necessitatem boni communis.

7. Subject matter of international treaties

Leaving aside the actual motives that induce States to enter into or accept agreements—which are already difficult to scrutinize in conventions between private persons and are in any event irrelevant—any purpose may be the subject of an agreement. Such purposes must be borne in mind when interpreting the clauses; and with regard to them, attempts have also been made at empirical and approximate groupings or classifications, which have little or no practical or doctrinal importance (territorial, political, economic, financial, labor, emigration agreements, etc.). The invalidity, also in relations between States, of agreements contra bonos mores has been mentioned, in the name of moral justice, which is superior to the unlimited power of States to assume any obligation whatsoever. This principle cannot be denied even by States, however rare such cases may be, and it constitutes a ground for declaring an agreement null and void, including by third parties.

8. Formalities

The will of the contracting parties is expressed through the organs qualified to bind that will, either directly or, more frequently, through a person furnished with powers. It is not sufficient for a delegate or experts qualified to discuss or negotiate the agreement to participate in the negotiations; rather, the binding instrument must be signed by one who has the authority to do so (a plenipotentiary). Thus, the solemn and formal instrument granting such authority (called, precisely, full powers) must be examined in order to establish that it emanates from the national authority qualified to delegate the powers; that they are regular (not affected by defects of form); and that they are sufficient to permit the valid assumption of specified obligations (verification of credentials, exchange or deposit of full powers, etc.). With the signature of the solemn instrument, the convention does not enter into force unless it has been expressly agreed that it shall enter into force immediately, subject to subsequent ratification. For this to occur, it must be ratified, the ratifications must be verified or deposited, and, if the agreement is collective, the number of deposited ratifications must reach the number stipulated by the convention. Once this has occurred, unless immediate entry into force has been expressly agreed, the period preceding the entry into force of the convention begins to run.

8. Agreement by way of accession or adherence. — In addition to being a signatory, a State may become party to an agreement by way of adherence or accession, that is, by expressing its desire to become party to the agreement. If the agreement is open to all States (e.g., a postal convention), every State may adhere to it freely and at any time, depositing its adherence in the forms established by the convention. If it is open for a specified period, the right to adhere to it expires when that period ends. If adherence is admitted only conditionally, those conditions must be observed. At times adherence is entirely excluded, since the agreements have been concluded with consideration for the States that might adhere to them; that is, the consideration of intuitus personae applies.

9. Registration. — With the creation of the League of Nations, the principle was adopted that international agreements should be registered (art. 18) as an obligation for member States, and this principle was reaffirmed by the Charter of the United Nations (arts. 102–103). Both the League of Nations and now the UN proceed to publish the registered t.

Registration: a) seeks to ensure that the agreement conforms to the principles of the Charter, which prevails over the agreement (art. 103); b) seeks to provide the greatest possible publicity, also for the aforementioned purpose, for the t., so that the collection of the t. of the League of Nations, and now of the UN, constitutes one of the most important collections of modern t., although it is not complete, since the obligation binds only member States (as to the legal value of registration, it should be noted that this was much debated in relation to art. 18 of the Covenant; art. 102 of the Charter entails a sanction, namely that an unregistered agreement may not be invoked before a UN organ).

10. Legal effects. — Once the t. has entered into force, whoever has accepted it (whether a signatory or an adherent) is bound to observe and apply it in good faith. It binds only those who have accepted it, and therefore cannot impose obligations upon, or diminish the rights of, third parties. But even if it were to confer advantages upon third parties, it would not bind them without their acceptance. A t. requiring a State to cede part of its territory to a neighboring State that had remained neutral would bind only the defeated State to cede the territory if the neighbor, having accepted the clause, requested its observance of its own accord. Nevertheless, it should be borne in mind that t. which create legal situations (territorial transfers of sovereignty) assume an objective character and are valid vis-à-vis the international community, unless a State challenges, perhaps by coercive means, the situation created.

11. Interpretation. — T. must be interpreted in good faith, taking into account the purposes that inspired them and that they are intended to achieve, but within the limits of the commitments actually undertaken (here too, the analogy of the interpretation of contracts applies).

12. Termination and suspension. — T. terminate upon the expiration of the period of duration established by them (provided that cases of tacit extension do not arise), upon fulfillment of the object of the t., upon the occurrence of termination and forfeiture clauses, upon the extinction of one or more of the contracting parties, by the common consent of the contracting parties, etc. Moreover, the t. terminates when one of the parties violates it and the other denounces it and declares itself released from the commitments undertaken, or when unilateral withdrawal is expressly provided for and regulated by the t. Finally, it is admitted that the t. may terminate upon denunciation by one of the parties when the factual circumstances on which the t. was based and which constituted its premise have substantially ceased to exist (applications of the rebus sic stantibus clause). At the very least, such circumstances are sufficient to invoke revision of the t.

War, as a general rule, entails the suspension of t. (unless they were expressly concluded for wartime and thus become operative during that period), since it is impossible to apply them; they therefore resume force when the state of war ceases, unless the war has caused such changes in the factual circumstances as to make it possible to invoke the rebus sic stantibus clause. In this case, it is not the war itself that brings about the termination of the t., but only indirectly and mediately.

The first category includes agreements of various kinds. Two years after the discovery of America, for example, the Capitalación of Tordesillas was concluded (17 June 1494), by which Spain and Portugal reached an agreement concerning the new territories. It was of enormous importance, though this is less appreciated today. The same must be said of the first Franco-Turkish Capitulation of 1535, since it inaugurated the practice of capitulations, which disappeared only a few years ago and which assumed immense importance in relations with the Ottoman Empire and the other States to which they were subsequently extended. But in relations with Turkey they also marked the definitive collapse of the impious agreements—as the first understandings that Christian States had concluded with Islamic ones (e.g., the Maritime Republics with the Barbary States) and which the Holy See had formally condemned were described and condemned. Certain agreements of a legal nature must also be defined as great, insofar as they established certain fundamental principles of law, such as the Declaration of Paris of 16 Apr. 1856; the Hague Conventions of 1899 and 1907; the Declaration of London of 1909, etc. These t. have become increasingly numerous and, as they increase, the historical importance of the earliest ones grows dim.

Among those that mark genuine historical stages, only the principal ones need be mentioned; they are discussed under the individual entries and the individual nations concerned: the Concordat of Worms (1122), the Treaty of Peace of Cateau-Cambrésis (1559), of Westphalia (1648), of Vienna (1815), of Berlin (1878), of Versailles (1919–20), of Paris (1947), of S. Francisco (1951).

III. COLLECTIONS OF INTERNATIONAL TREATIES

In 1693 the first great collections of international treaties appeared, produced by the French royal printer Léonard (6 vols.), with a preface by Amelot de la Hussaye, and by Leibnitz, preceded by a substantial introduction to his Codex juris gentium (Hannover 1693). At the same time, the first national collection was begun in England by Rymer. Seven years later, the French theologian Jacques Bernard completed a Recueil des traités etc. in 4 vols. (Amsterdam 1700), shortly preceding the celebrated and monumental collection by Dumont (Corps universel diplomatique du droit des gens, etc., Amsterdam 1731–38, in 8 vols., in addition to the continuation), which stopped at 1731. Rousset’s Suppléments continued it to 1738. In 1781 Wenck began a Codex juris gentium recentissimi, covering the period from 1735 to 1772 (3 vols., Leipzig 1781–1795). Finally, in 1790 G. F. V. Martens began his monumental Recueil des traités (8 vols., Göttingen 1791–1801), which contains international treaties from 1761 onward; he subsequently added 12 vols. of Suppléments (ibid. 1802 ff., 1817 ff.) and a Nouveau recueil (4 vols., ibid. 1843 ff.). The work was subsequently continued by various successive editors in several series. In 1892 the Institut de droit international advocated the creation of an international Bureau for the general publication of international treaties, but a conference convened for this purpose by the Swiss government in Bern (25 September 1894) went no further than an exchange of ideas. The initiative, as mentioned, was taken up again with the Covenant of the League of Nations and subsequently with the Charter of the UN, which led to the publication of a voluminous Recueil, although it is not complete, for the reasons mentioned earlier.

Nearly all States, on the other hand, now have a purely national collection of treaties (including Italy), nor are extensive private collections lacking, such as the one begun by Bruns, or collections of more limited scope (Strupp), or anthologies intended primarily for academic use (Albin, Anchieri, etc.), and collections organized by subject (Giannini), etc.

IV. HISTORY OF THE T

This name has been given to that special history which is not intended to illustrate the internal or external history of particular international treaties, but to reconstruct the history of relations among peoples through diplomatic treaties, considered as the most solemn expression of those relations (the archives of peoples according to de Mably; the history of civilization according to Albicini; the history of the juridical society of States according to Schiattarella), and through those treaties that indicate their fundamental stages. This conception, connected with the tendency to make the history of treaties an auxiliary discipline in the teaching of international law (for the same reason, instruction was combined with that of diplomacy, understood as diplomatic style or the technique of international relations), may be considered obsolete, but the old designation continues to be used, through the force of tradition, alongside such others as the history of international relations, the history of foreign policy, the history of international politics, diplomatic history, etc., all of which ultimately refer to history considered particularly from the diplomatic point of view and therefore, as has been indicated, to a special history in relation to general history.

Finally, it should be recalled that, according to analogous criteria, in relation to the Holy See people have spoken of the history of concordats, and there has even been no shortage of attempts to combine the history of treaties with that of concordats, while others have preferred to speak of the history of pontifical diplomacy. The latter is, in the end, more accurate and broader in scope, since the Holy See has concluded neither treaties nor concordats with certain States, while diplomatic relations nevertheless exist with them, and these relations may accordingly be made the subject of history.

Technically, the treaty, like all solemn diplomatic documents, is divided into three parts.

In the first (protocol, introductory section), the contracting parties are indicated first (the invocation of the Most Holy Trinity, as was done in old treaties, having fallen into disuse), followed by the purposes that induce the parties to conclude the agreements; this may also be accompanied by a brief account of the events that led to the agreements (especially in peace treaties), an account that is often inaccurate or distorted and that in any event does not constitute history. This is followed by the list of the plenipotentiaries, reference to the verification or deposit of their powers, and the declaration of the intention to conclude the agreement.

The second part (mesocollo) comprises the provisions specifically intended to achieve the purposes indicated, or presumed to be indicated, in the introductory section (especially in peace treaties), and represents the central part and substance of the agreement. These provisions are followed by the so-called formal clauses (sometimes more numerous than the former), which determine who is entitled to sign the document, who may join or accede to it, whether the signature, accession, or ratification may be accompanied by reservations, the period within which it may be signed (a treaty open for a fixed or indefinite period) or acceded to and the procedure for doing so, how and when ratifications are to be effected, the period and conditions under which it enters into force, the procedure for revision, denunciations and the period after which they become operative, the duration of the agreement (if concluded for a fixed period), the manner of settling disputes arising from the interpretation or application of the agreement (an arbitration clause, the jurisdiction of the Court of Justice, or that of a special court), and the language or languages used and the one that is authoritative.

This last clause is sometimes inserted in the third part of the document (eschatocol), which in any event indicates the date and place where the document is signed, the government or institutional archive in which the original text is deposited (and which ordinarily centralizes the collection of ratifications, accessions, and denunciations, notifying the signatories thereof, and draws up the official record of the fulfillment of the conditions bringing the agreement into force, which must therefore be notified to the signatories or acceding parties), and finally the signatures of the plenipotentiaries, together with any declarations, reservations, etc. The plenipotentiaries may sign unconditionally or ad referendum. Reservations must be authorized and provided for by the agreement or, at the very least, must not be contrary to II.
Some of these formal clauses are new, whereas certain older formal clauses have fallen into disuse, such as that concerning the solemn sworn confirmation of the pact and the intervention of the Supreme Pontiff in the confirmation and execution of the agreement (which survived for some time even after the fall of the Respublica christiana). Amedeo Giannini