exercise of this power are nevertheless of importance for the Law of Nations. Such treaties concluded by heads of States, or representatives authorised by these heads, as violate constitutional restrictions are not real treaties, and do not bind the State concerned, because the representatives have exceeded their powers in concluding the treaties.1 Such constitutional restrictions, although they are not of great importance in Great Britain,2 play a prominent part in the constitutions of most countries.3 Thus, according to Article 8 of the French Constitution, the President exercises the treatymaking power; but peace treaties and such other treaties as concern commerce, finance, and some other matters, are not valid without the co-operation of the French Parliament. Thus, further, according to Article 45 of the German Constitution, the President exercises the treaty-making power in the name of the Federation; but such treaties as refer to subjects of Federal legislation require the consent of the Reichstag. Again, according to Article 2, § 2, of the Constitution of the United States, the President can only ratify treaties with the consent of the Senate.

Consent of

the Con

Parties.

§ 498. A treaty being a convention, mutual consent Mutual of the parties is necessary. Mere proposals made by one party, and not accepted by the other, are, therefore, tracting not binding upon the proposer. Without force are also pollicitations, which contain mere promises without acceptance by the party to whom they were made. Not binding are, lastly, so-called punctationes, mere negotiations on the items of a future treaty, without the parties entering into an obligation to conclude that treaty. But such punctationes must not be confounded,

1 The whole matter is discussed with great lucidity by Nippold, op. cit., pp. 127-164; see also Schoen, loc. cit.

See Anson, The Law and Custom of the Constitution, ii. (2nd ed.),

pp. 297-300.

3 See Crandall, op. cit., §§ 33-154, where the constitutional rules concerning the making of treaties which prevail in the United States, and in most other countries, are discussed.

Freedom

of Con

Represen

tatives.

either with a preliminary treaty, or with. so-called pactum de contrahendo. A preliminary tresy requires the mutual consent of the parties with regal to certain important points, whereas other points ave to be settled by the definitive treaty to be confuded later. Such preliminary treaty is a real treaty, ad therefore binding upon the parties. A pactum d contrahendo requires likewise the mutual consent of tle parties. It is an agreement upon certain points to be incorporated in a future treaty, and is binding upon the parties. The difference between punctationes and a pactum de contrahendo is, that the latter imposes an obligation on the parties to settle the points in question by a treaty, whereas the former does not.

§ 499. As a treaty will lack binding force without of Action real consent, absolute freedom of action on the part of senting the contracting parties is required. It must, however, be understood that circumstances of urgent distress, such as either defeat in war, or the menace of a strong State to a weak State, are, according to the rules of International Law, not regarded as excluding the freedom of action of a party consenting to the terms of a treaty. The phrase 'freedom of action' applies only to the representatives of the contracting States. It is their freedom of action in consenting to a treaty which must not have been interfered with, and which must not have been excluded by other causes. A treaty concluded through intimidation exercised against the representatives of either party, or concluded by intoxicated or insane representatives, is not binding upon the party so represented. But a State which was forced by circumstances to conclude a treaty containing humiliating terms has no right afterwards to shake off the obligations of such a treaty on the ground that its freedom of action was interfered with at the time.1 This must be

1 See examples in Moore, v. § 742.

emphasised, because, in practice, such cases of repudiation have frequently occurred. A State may, of course, hold itself justified by political necessity in shaking off such obligations, but this does not alter the fact that such action is a breach of law.

in Con

Parties.

§ 500. Although a treaty was concluded with the Delusion real consent of the parties, it is nevertheless not bind- and Error ing if the consent was given in error, or under a delusion tracting produced by a fraud of the other contracting party. If, for instance, a boundary treaty were based upon an incorrect map, or a map fraudulently altered by one of the parties, such treaty would by no means be binding. Although there is freedom of action in such cases, consent has been given under circumstances which prevent the treaty from being binding.

III

OBJECTS OF TREATIES

Vattel, ii. §§ 160-162, 166-Hall, § 108-Phillimore, ii. § 51-Walker, § 30Bluntschli, §§ 410-416-Heffter, § 83-Ullmann, § 79-Bonfils, No. 819Despagnet, No. 445-Pradier-Fodéré, ii. Nos. 1080-1083—Mérignhac, ii. p. 640-Rivier, ii, pp. 57-63-Nys, ii. pp. 503-504-Fiore, ii. Nos. 1001-1004, and Code, Nos. 760-763-Martens, i. § 110-Jellinek, Die rechtliche Natur der Staatenverträge (1880), pp. 59-60-Nippold, op. cit., pp. 181-190.

Treaties.

§ 501. The object of treaties is always an obligation, Objects in whether mutual between all the parties, or unilateral general of on the part of one only. Speaking generally, the object of treaties can be an obligation concerning any matter of interest for States. Since there exists no other law than International Law for the intercourse of States with each other, every agreement between them regarding any obligation whatever is a treaty. However, the Law of Nations prohibits some obligations from becoming objects of treaties, so that such treaties as comprise

Obligations of

obligations of this kind are, from the very beginning, null and void.1

§ 502. Obligations to be performed by a State other Contract than a contracting party cannot be the object of a ingParties treaty. A treaty stipulating such an obligation would only can be Object. be null and void. But this must not be confounded with

An Obli

consistent

an obligation undertaken by one of the contracting States to exercise an influence upon another State to perform certain acts. The object of a treaty with such a stipulation is an obligation of one of the contracting States, and the treaty is therefore valid and binding. § 503. An obligation inconsistent with obligations gation in under treaties previously concluded by one State with with other another cannot be the object of a treaty with a third Obligations can- State. Thus, in 1878, when, after the war, Russia and Turkey concluded the preliminary Treaty of Peace of San Stefano, which was inconsistent with the Treaty of Paris of 1856 and the Convention of London of 1871, England protested, and the Powers met at the Congress of Berlin to arrange matters by mutual consent.

not be an

Object.

Object

Physic

ally Possible.

§ 504. An obligation to perform a physical impossimust be bility 3 cannot be the object of a treaty. If perchance a State entered into a convention stipulating an obligation of that kind, no right to claim damages for nonfulfilment of the obligation would arise for the other party, such treaty being legally null and void.

Immoral

tions.

§ 505. It is a customarily recognised rule of the Law Obliga- of Nations that immoral obligations cannot be the object of an international treaty. Thus, an alliance for the purpose of attacking a third State without provocation is, from the beginning, not binding. It cannot be denied that in the past many treaties stipulating

1 The voidance ab origine of these treaties must not be confounded with voidance of such treaties as are valid in their inception, but become afterwards void on some ground or

other; see below, $$ 541-544.

2 See Martens, N.R.G., 2nd Ser. iii. p. 257.

3 See below, § 542.

immoral obligations have been concluded and executed, but this does not alter the fact that such treaties were legally not binding upon the contracting parties. It must, however, be taken into consideration that the question as to what is immoral is often controversial. An obligation which is considered immoral by other States may not necessarily appear immoral to the contracting parties, and there is no court that can decide the controversy.

tions.

§ 506. It is a unanimously recognised customary Illegal rule of International Law that obligations which are at Obligavariance with universally recognised principles of International Law cannot be the object of a treaty. If, for instance, a State entered into a convention with another State not to interfere in case the latter should appropriate a certain part of the open sea, or should command its vessels to commit piratical acts on the open sea, such treaty would be null and void, because it is a principle of International Law that no part of the open sea can be appropriated, and that it is the duty of every State to interdict to its vessels the commission of piracy on the high seas.

IV

FORM AND PARTS OF TREATIES

Grotius, ii. c. 15, § 5-Vattel, ii. § 153-Hall, § 109-Westlake, i. pp. 290291-Wheaton, § 253-Moore, v. § 740-Hershey, No. 298-Bluntschli, S$ 417-427-Hartmann, §§ 46-47-Heffter, §§ 87-91-Ullmann, § 80Bonfils, Nos. 821-823-Pradier-Fodéré, ii. Nos. 1084-1099-Mérignhac, ii. p. 645-Rivier, ii. pp. 64-68-Nys, ii. pp. 504-507-Fiore, ii. Nos. 1004-1006, and Code, Nos. 764-768-Martens, i. § 112-Jellinek, Die rechtliche Natur der Staatenverträge (1880), p. 56-Nippold, op. cit., pp. 178-181-Crandall, op. cit., § 6.

sary Form

§ 507. The Law of Nations includes no rule which No Necesprescribes a necessary form of treaties. A treaty is, of therefore, concluded as soon as the mutual consent of Treaties.