INTERNATIONAL TREATIES. - In a broad sense, a treaty is any juridical act stipulated 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 fulfill, servatis servandis, in the international field the same function that positive legislation performs in the field of private and public law as against natural law.
They originate from the concordant will of two States, since there does not yet exist in the international world an authority capable of legislating effectively for all the nations of human society.
1. DOCTRINE OF TREATIES
Form. - Although historically there is no lack of merely oral conventions, concluded between heads of State among themselves and rigorously observed, agreements between States almost always assume written form, and even if concluded orally they are later, more or less rapidly, transformed into written documents (e.g., the Laval-Mussolini agreements for Ethiopia in 1935). The solemn bilateral or collective documents that record agreements between States are precisely international treaties, which assume different names (agreements, conventions, pacts, protocols, etc.) and are drafted according to a technique that will be dealt with later.
2. Distinctions
According to a doctrine that was for some time much debated (and is even today reaffirmed by some, e.g., Ottolenghi), a distinction is drawn between treaty-agreements (Vereinbarung) and treaty-contracts (Vertrag). The former would present a certain parallelism with internal laws, leading to the fusion of several wills of identical content; such would be, for example, all treaties of international codification of law, or those that create unions or administrative institutions. The latter, on the other hand, would present a parallelism with contracts, insofar as they result from the meeting of two or more wills of different content (e.g., sale or cession of a territory, commitment to specific supplies under specific conditions, etc.). The distinction may now be said to be almost entirely abandoned, since the conception prevails that all treaties form a single category, based on the meeting of the wills of the contracting States, in order to achieve a determined purpose.
3. Parallelism between international treaties and private conventions
The parallelism between the international convention and that between private individuals has provoked some tendency to regulate the former on the basis of the latter, and from this parallelism is also deduced the definition generally given of international treaties as the agreement of two or more States to establish, modify or dissolve a juridical relationship between them. While not disregarding the parallelism of situations, and therefore of the norms that regulate them, one must nevertheless not force the analogy to the extreme. That said, 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 juridical effects that follow, provided always that such requirements are present.
4. Existence of international treaties
For the existence of an international convention there are required two or more contracting parties (bilateral or plurilateral or collective conventions) and that they possess the international juridical capacity that qualifies them to stipulate agreements and to assume commitments of an international order; hence included among them are not only States that possess full international juridical capacity (what agreements a protected or vassal State or one subject to trusteeship may stipulate is determined by the agreement that regulates their relations with the protecting or administering State), but also those entities to which international juridical personality belongs or is recognized.
5. Validity of international treaties
Not every manifestation of will by a capable subject is juridically sufficient to produce a relevant commitment (apart from considerations of morality or propriety); the will must be precise and determined and must not be vitiated by error, violence or fraud, as in contracts. That an error capable of invalidating the manifestation of will may occur is not without some characteristic example, such as the one into which the USA and the United Kingdom fell when they accepted the content of letter A of art. 23 of the V Hague Convention of 18 Oct. 1907, believing that it had a meaning entirely different from that attributed to it by the other contracting parties. Likewise, the case of fraud is not frequent, but not impossible. Special consideration deserves the requirement of violence, of which classic historical examples are not lacking. If one were to interpret rigorously the concept of violence in international conventions, one would have to invalidate all, or at least almost all, peace treaties, since there is scarcely ever any vanquished party that has welcomed the clauses of the peace treaty, immediately or endured under the threat of the resumption, under unequal conditions, of military operations or military occupations. Hence, even if the fear is unjustly instilled, many hold the treaty valid for the defeated signatory not by the internal force of the pact, but propter necessitatem boni communis.
6. Object of international treaties
Setting aside the real motives that induce States to enter into or accept agreements, which are already difficult to scrutinize in conventions between private individuals, and which are in any case irrelevant, any purpose whatsoever may be the object of an agreement. They must be kept in mind for the purposes of interpreting the clauses, and with regard to them empirical and approximate groupings or classifications have also been attempted, which have little or no practical and doctrinal importance (territorial, political, economic, financial, labor, emigration agreements, etc.). Mention has been made of the invalidity, even in relations between States, of agreements contra bonos mores, in the name of the moral justice that is superior to the unlimited power of States to assume any commitment whatsoever. This principle cannot be disregarded, however rare the cases may be, even by States, and it is grounds for invalidating the agreement with nullity even on the part of third parties.
7. Formalities
The will of the contracting parties is manifested through the organs qualified to commit that will itself, either in direct form or, more frequently, through a person furnished with powers. That is to say, it is not enough for a delegate or qualified experts to participate in discussing or negotiating the agreement during the negotiations, but the binding act must be signed by one who has the powers to do so (plenipotentiary); hence the solemn and formal act that grants such powers (called precisely full powers) must be checked in order to ascertain that it emanates from the national authority qualified to delegate the powers; that these are regular (not affected by defects of form) and sufficient to be able validly to assume determined commitments (verification of powers, exchange or deposit of full powers, etc.). With the signing of the solemn act the convention, unless it is expressly agreed that it enters into force immediately, subject to further ratification, does not enter into force. For this to occur, it must be ratified, the ratifications must be verified or deposited and, if the agreement is collective, the number of ratifications deposited must reach that determined by the convention. When this has occurred, unless the immediate entry into force has been expressly agreed, the term for the entry into force of the convention begins to run.
8. Agreement by way of adhesion or accession
Besides being a signatory, a State may become a party to an agreement by way of adhesion or accession, that is, by expressing its will to be a party to the agreement. If the agreement is open to all States (e.g., the postal convention), every State may accede to it freely and at any time, by depositing its accession in the forms determined by the convention. If it is open for a determined period of time, the faculty of acceding to it comes to an end with the expiry of the term. If accession is permitted only conditionally, those conditions must be observed. Sometimes accession is entirely excluded, inasmuch as the agreements were concluded taking into account the States that could accede to them; that is, the consideration of the 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 undertaking for member States, and the principle was reconfirmed by the UN Charter (arts. 102-103). Both the League of Nations and now the UN proceed to the publication of the registered treaties.
Registration: a) tends to have the conformity of the agreement with the principles of the Charter, which prevails over the agreement (art. 103), checked; b) tends to give the greatest publicity, also for the aforementioned purpose, to treaties, so that the collection of the treaties of the League of Nations, and now of the UN, constitutes one of the most significant collections of modern treaties, although not complete, given that the undertaking binds only the member States (as to the legal value of registration, it must be noted that it was much discussed in relation to art. 18 of the Covenant; art. 102 of the Charter entails a sanction, namely that an unregistered agreement cannot be invoked before an organ of the U.N.).
10. Legal effects
When the treaty has entered into force, whoever has accepted it (signatory or acceding party) is bound to observe it and to apply it in good faith. It binds only those who have accepted it, so that it cannot impose obligations or impair the rights of third parties. But even if it entailed advantages for third parties, it would not bind third parties without their acceptance. A treaty that imposed on a State the cession of a part of its territory to a neighbouring State that had remained neutral would bind only the defeated State to cede the territory, should the neighbour, having accepted the clause, demand its observance of its own will. It must nevertheless be borne in mind that treaties which create legal situations (territorial transfers of sovereignty) assume an objective aspect, and are valid with respect to the international Community, unless a State contests the situation created, perhaps by coercive means.
11. Interpretation
Treaties are to be interpreted in good faith, taking into account the purposes that inspired them and that they intend to realize, but within the limits of the commitments actually assumed (here too the analogy of the interpretation of contracts applies).
12. Extinction and suspension
Treaties are extinguished by the expiry of the term of duration established by them (provided that cases of tacit renewal do not arise), by the fulfilment of the object of the treaty, by the occurrence of clauses of termination and forfeiture, by the extinction of one or more of the contracting parties, by the concordant will of the contracting parties, etc. Furthermore, the treaty is extinguished when one of the parties violates it and the other denounces it and declares itself released from the commitments assumed, or when unilateral withdrawal is expressly provided for and regulated by the treaty. It is finally admitted that the treaty may be extinguished upon denunciation by one of the parties when the factual circumstances on which the treaty was based and which were its presupposition have substantially ceased to exist (applications of the clause rebus sic stantibus). At the very least, such circumstances are sufficient to call for the revision of treaties.
War, in general, entails the suspension of treaties (unless they were expressly concluded for wartime and thus become operative in that time), inasmuch as it is impossible to apply them, so that they regain force with the cessation of the state of war, unless this has brought about such changes in the factual circumstances as to make the clause rebus sic stantibus invocable. In such a case it is not war in itself that brings about the extinction of the treaty, but only indirectly and mediately.
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II. GREAT TREATIES
By a term that is merely customary and approximate, those international agreements are designated as great treaties which mark either a great event of a political or juridical order, or else the historical stages in relations between peoples.
Agreements of a different nature fall into the first category. Two years after the discovery of America, for example, the Capitalación of Tordesillas was concluded (17 June 1494), by which Spain and Portugal came to an agreement on the new territories. It had an enormous importance, which today is appreciated less. The same must be said of the first Franco-Turkish Capitulation of 1535, in that it opened the practice of capitulations, which disappeared only a few years ago, and which had very great significance in relations with the Ottoman Empire and the other States to which they were later 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 had been defined and condemned (for example, the maritime Republics with the Barbary States) and which the Holy See had formally condemned. Some agreements of a juridical character must be defined as great in that they fixed certain basic principles of law, such as the Declaration of Paris of 16 April 1856; the Hague Conventions of 1899 and 1907; the Declaration of London of 1909, etc. These treaties have become ever more numerous and, as they increase, the historical value of the first ones pales.
Among those that mark true historical stages, we limit ourselves to indicating the principal ones, which are treated under the individual entries and under the individual nations concerned: the Concordat of Worms (1122), the Peace Treaty of Cateau-Cambrésis (1559), of Westphalia (1648), of Vienna (1815), of Berlin (1878), of Versailles (1919-20), of Paris (1947), of San 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 Houssaye, and by Leibniz, preceded by a substantial introduction to his Codex juris gentium (Hanover 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), which was shortly preceded by the celebrated and monumental collection of Dumont (Corps universel diplomatique du droit des gens, etc., Amsterdam 1731-38, in 8 vols. plus the continuation), which stopped at 1731. The Suppléments of Rousset continued it up to 1738. Wenck began in 1781 a Codex juris gentium recentissimi, which runs 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 the international treaties from 1761 onward, to which he 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 called for the creation of a Bureau internationale for a general publication of international treaties, but a conference convened for that purpose by the Swiss government at Bern (25 Sept. 1894) went no further than an exchange of ideas. The initiative, as has been mentioned, was taken up again with the Covenant of the League of Nations and then with the UN Charter, which have brought about the publication of a voluminous Recueil, which is not, however, complete, for the reasons previously mentioned.
Almost all States, on the other hand, currently have a purely national collection of treaties (including Italy), nor are there lacking private collections of great scope such as the one begun by Bruns, or of more limited proportions (Strupp), or anthologies for predominantly academic use (Albin, Anchieri, etc.) and collections by subject (Giannini), etc.
IV. HISTORY OF TREATIES
Under this name has been designated that special history which is not intended to illustrate the internal or external history of specific international treaties, but to reconstruct the history of relations between peoples through diplomatic treaties, considered as the most solemn expression of those relations themselves (archives of peoples according to de Mably; history of civilization according to Albicini; history of the juridical society of States according to Schiattarella), and those that mark its fundamental stages. This conception, connected to the tendency to make the history of treaties an auxiliary discipline for the teaching of international law (for the same reason the teaching was paired with that of diplomacy, understood as diplomatic style or technique of international relations), can be considered outdated, but the old denomination continues to be used, by force of tradition, alongside the others of history of international relations, history of foreign policy, history of international politics, diplomatic history, etc., which all ultimately return to history considered particularly under the diplomatic profile, and therefore, as has been mentioned, special history with respect to general history.
It is recalled finally that with analogous criteria there has been talk, in relation to the Holy See, of a history of concordats, and there has been no lack of pairing the history of treaties and of concordats, while others have preferred to speak of a history of pontifical diplomacy, which is fundamentally more correct and of broader scope, since with certain States the Holy See has stipulated neither treaties nor concordats and nevertheless diplomatic relations nonetheless exist, of which a history can be written.
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V. TECHNIQUE OF INTERNATIONAL TREATIES
International treaties, whatever their denomination (solemn conventions, conventions, pacts, agreements, protocols, declarations, exchanges of notes, in the older terminology, capitulations), are, from the technical point of view, the diplomatic documents that are most affected by the traditionalism of diplomatic style, also because they usually retain the solemn form, even when they are drafted by new international bodies such as the League of Nations and the UN. Only exchanges of notes are not solemn, having become a very frequent and flexible means of concluding agreements even of considerable importance. Oral agreements are not solemn and have almost fallen into disuse, since for them no technique and no formalities are required.
Technically the treaty, like all solemn diplomatic documents, is divided into three parts.
In the first (protocol, introductory part) there are indicated first (the invocation to the Most Holy Trinity, as was done in old treaties, having fallen into disuse) the contracting parties, then the purposes that induce the parties to conclude the agreements, which may also be accompanied by a summary narrative of the events that led to the agreements (especially in peace treaties), a narrative that is often inaccurate or falsified and that in any case does not make history. There follows the list of the plenipotentiaries, the mention of the verification or deposit of the powers, and the declaration of the intention to conclude the agreement.
The second part (mesocolon) comprises the rules that tend specifically to realize the purposes indicated in the introductory part, or that are presumed to be such (especially in peace treaties) and that represent the central part and the substance of the agreement. These rules are followed by the so-called stylistic clauses (sometimes more numerous than the former), which determine who is admitted to sign the document, who may adhere to it or accede to it, whether the signature, adherence or ratification may be accompanied by reservations, the time limit within which one may sign (treaty open for a fixed or indefinite period) or adhere and by what procedure, how and when ratifications must be effected, the time limit and the conditions under which it enters into force, the revision procedure, denunciations and the time limit within which they become operative, the duration of the agreement (if for a fixed period), the manner of settling disputes arising from the interpretation or application of the agreement (arbitration clause, jurisdiction of the Court of Justice or of a special jurisdiction), 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 case indicates the date and place at which the document is signed, the archive of the government or body with which the original text is deposited (and which usually centralizes the collection of ratifications, adherences, denunciations, giving notice thereof to the signatories, and draws up the minutes of the occurrence of the conditions that bring the agreement into force and which must therefore be notified to the signatories or adherents) and finally the signatures of the plenipotentiaries, with their possible declarations, reservations, etc. Plenipotentiaries may sign purely and simply or ad referendum. Reservations must be permitted and provided for by the agreement, or, at the very least, must not be contrary to it.
Some of these stylistic clauses are new, while certain old stylistic clauses have fallen into disuse, such as that of the solemn sworn confirmation of the pact, the intervention of the Supreme Pontiff in the confirmation and execution of the agreement (which survived for some time even after the Respublica christiana had fallen).
Amedeo Giannini