Binding Force of 1 tion of the different kinds of treaties, for hitherto all attempts 1 at such classification have failed. But there is one distinction to be made, which is of the greatest importance, and according to which the whole body of treaties is to be divided into two classes. In one class are treaties concluded for the purpose of confirming, defining, or abolishing existing customary rules, and of establishing new rules for the Law of Nations. Treaties of this kind ought to be termed law-making treaties. Into the other class fall treaties concluded for any other purpose. Law-making treaties as a source of rules of International Law have been discussed above (§ 18); the most important of these treaties will be considered below (§§ 556-568c). § 493. The question why international treaties have Treaties. binding force, always was, and still is, very much disputed. That all those publicists who deny the legal character of the Law of Nations deny likewise a legally binding force in international treaties is obvious. But even among those who acknowledge the legal character of International Law, unanimity by no means exists concerning the binding force of treaties. The question is all the more important as everybody knows that treaties are sometimes broken, rightly according to the opinion of the one party, and wrongly according to the opinion of the other. Many publicists find the binding force of treaties in the Law of Nature; others in religious and moral principles; others 2 again in the self-restraint exercised by a State in becoming a party to a treaty. Some writers 3 assert that it is the will of the contracting parties which gives binding force to their treaties; 1 Since the time of Grotius, the science of the Law of Nations has not ceased attempting a satisfactory classification of the different kinds of treaties. See Heffter, §§ 89-91; Bluntschli, §§ 442-445; Martens, i. § 113; Ullmann, § 82; Wheaton, § 268 (following Vattel, ii. § 169); Rivier, ii. pp. 106-118; Westlake, i. p. 294, and many others. 2 So Hall, § 107; Jellinek, Staatenverträge, p. 31; Nippold, § 11. 3 So Triepel, Völkerrecht und Landesrecht (1899), p. 82. 1 and others 1 teach that such binding force is to be found im Rechtsbewusstsein der Menschheit-that is, in the idea of right innate in man. I believe that the question can satisfactorily be dealt with only by dividing it into several different questions, and by answering those questions seriatim. First, the question is to be answered why treaties are legally binding. The categorical answer must be that this is so because there exists a customary rule of International Law that treaties are binding. Then the question might be put as to the cause of the existence of such customary rule. The answer must be that such rule is the product of several joint causes. Religious and moral reasons require such a rule, quite as much as the interest of the States, for no law could exist between nations, if such rule did not exist. All causes which have been, and are still, working to create, and maintain, an International Law are at the background of this question. And, thirdly, the question might be asked, how it is possible to speak of treaties having legally binding force without a judicial authority to enforce their stipulations. The answer must be that the binding force of treaties, although it is a legal force, is not the same as the binding force of contracts according to Municipal Law, since International Law is a weaker law, and for this reason less enforceable, than Municipal Law. But just as International Law does not lack legal character, in consequence of the fact that there is no central authority 2 above the States which could enforce it, so international treaties are not deficient of a legally bindng force, because there is no judicial authority for the enforcement of their stipulations. 1 So Bluntschli, § 410. 2 See above, § 5. The making Power. II PARTIES TO TREATIES Vattel, ii. §§ 154-156, 206-212-Hall, § 108-Westlake, i. p. 290-Phillimore, ii. SS 48-49-Taylor, §§ 361-365-Hershey, No. 297-Wheaton, §§ 265267-Moore, v. §§ 734-737-Bluntschli, §§ 403-409-Heffter, §§ 84-85– Ullmann, § 75-Bonfils, No. 818—Despagnet, No. 446—Pradier-Fodéré, ii. Nos. 1058-1068-Rivier, ii. pp. 45-48-Nys, ii. pp. 499-500-Calvo, iii. § 1616-1618-Fiore, ii. Nos. 984-1000, and Code, Nos. 748-754Martens, i. § 104-Nippold, op. cit., pp. 104-111-Crandall, op. cit., §§ 1-5-Schoen in Z. V., v. (1911), pp. 400-431. § 494. The so-called right of making treaties is not Treaty- a right belonging to a State in the technical meaning of the term, but a mere competence attaching to sovereignty. A State possesses, therefore, treating-making power only so far as it is sovereign. Full sovereign States may become parties to treaties of all kinds, being regularly competent to make treaties on whatever matters they please. Not-full sovereign States, however, can become parties only to such treaties as they are competent to conclude. It is impossible to lay down a hard and fast rule defining the competence of all not-full sovereign States. Everything depends upon the special case. Thus, the constitutions of Federal States comprise provisions with regard to the competence, if any, of the member-States to conclude international treaties among themselves as well as with foreign States.1 Thus, again, it depends upon the 1 According to Articles 7 and 9 of the Constitution of Switzerland the Swiss member-States are competent to conclude non-political treaties among themselves, and, further, such treaties with foreign States as concern matters of police, of local traffic, and of State economics. According to Article 78 of the German Constitution adopted since the World War, the German member-States are competent to conclude agreements with foreign States as to affairs regulated by State legislation; but these agreements require the consent of the Federation. On the other hand, according to Article 1, § 10, of the Constitution of the United States of America, the member-States are not competent to conclude treaties either among themselves or with foreign States. On the treaty-msking power of the United States, see Tucker, Limitations on the Treatymaking Power under the Constitution of the United States (1915). special relation between the suzerain and the vassal how far the latter possesses the competence to enter into treaties with foreign States; ordinarily a vassal can conclude treaties concerning such matters as railways, extradition, commerce, and the like. making by Heads or their § 495. The treaty-making power of States is, as a rule, Treatyexercised by their heads, either personally, or through Power representatives appointed by these heads. The Holy exercised Alliance of Paris, 1815, was personally concluded by of States the Emperors of Austria and Russia and the King of GovernPrussia. And when, on June 24, 1859, the Austrian ments. army was defeated at Solferino, the Emperors of Austria and France met on July 11, 1859, at Villafranca, and agreed in person on preliminaries of peace. Yet, as a rule, heads of States do not act in person, but authorise representatives to act for them. Such representatives receive a written commission, known as powers, or full powers, which authorise them to negotiate in the name of the respective heads of States. They also receive oral or written, open or secret instructions. But, as a rule, they do not conclude a treaty finally, for all treaties concluded by such representatives are, in principle, not valid before ratification.1 If they conclude a treaty by exceeding their powers, or acting contrary to their instructions, the treaty is not a real treaty, and not binding upon the State they represent. A treaty of such a kind is called a sponsio, or sponsiones. Sponsiones may become a real treaty, and binding upon the State, through the latter's approval. Nowadays, however, the difference between real treaties and sponsiones is less important than in former times, when the custom in favour of the necessity of ratification for the validity of treaties was not yet general. If nowadays representatives exceed their powers, their States can simply refuse ratification of the sponsio. Be that as it may, while, Function aries Treaty as a rule, the treaty-making power of States is exercised by their heads, the constitutional practice of some States assigns it, so far as many matters are concerned, to their Governments. In such a case it is the Government, and not the head of the State, which must ratify the treaty, in order to make it binding. Minor § 496. For some non-political purposes of minor importance, certain minor functionaries are recognised exercising as competent to exercise the treaty-making power of making their States, which is, so to say, delegated to them. Such functionaries are ipso facto, by their offices and duties, competent to enter into certain agreements without the requirement of ratification. Thus, for instance, in time of war, military and naval officers in command 1 can enter into agreements concerning a suspension of arms, the surrender of a fortress, the exchange of prisoners, and the like. But it must be emphasised that treaties of this kind are valid only when these functionaries have not exceeded their powers. Power. ions and Treaty. making Power. Self- § 496a. Again, the treaty-making power belonging to governing Domin- a full sovereign State may be for certain purposes, or to a certain extent, delegated according to the constitutional practice of that State by the central Government to the self-governing portions of the territory of that State. Thus, the British self-governing Dominions negotiate and conclude tariff arrangements with foreign States, and the Imperial Government is not in the habit of interfering, unless general imperial interests, or treaty obligations undertaken by Great Britain towards foreign States, are involved.2 Constitutional § 497. Although the heads of States are regularly, Restric- according to the Law of Nations, the organs that exercise the treaty-making power of the States, constitutional restrictions imposed upon the heads concerning the tions. 1 See Grotius, iii. c. 22. On the general position of self governing Dominions in Internstional Law, see above, §§ 94a, 94h. |