§ 484. Congresses and conferences not being organised by customary or conventional International Law, no rules exist with regard to the parties of a congress or conference. Everything depends upon the purpose for which a congress or a conference meets, and upon the Power which invites other Powers to the meeting. If it is intended to settle certain differences, it is reasonable that all the States concerned should be represented, for a Power which is not represented need not consent to the resolutions of the congress. If the creation of new rules of International Law is intended, at least all full-Sovereign members of the Family of Nations ought to be represented. To the First Peace Conference at the Hague, nevertheless, only the majority of States were invited to send representatives, the South American Republics not being invited at all. But to the Second Peace Conference of 1907 forty-seven States were invited, although only forty-four sent representatives. Costa Rica, Honduras, and Abyssinia were invited, but did not send any delegates.

It is frequently maintained that only full-Sovereign States can be parties to congresses and conferences. This is certainly not correct, as here, too, everything depends upon the merits of the special case. As a rule, full-Sovereign States only are parties, but there are exceptions. Thus, Bulgaria, at the time a vassal under Turkish suzerainty, was a party to the First as well as to the Second Hague Peace Conference, although without a vote. There is no reason to deny the rule that half- and part-Sovereign States can be parties to congresses and conferences in so far as they are able to negotiate internationally.[842] Such States are, in fact, frequently asked to send representatives to such congresses and conferences as meet for non-political matters.

But no State can be a party which has not been invited, or admitted at its own request. If a Power thinks it fitting that a congress or conference should meet, it invites such other Powers as it pleases. The invited Powers may accept under the condition that certain other Powers should or should not be invited or admitted. Those Powers which have accepted the invitation become parties if they send representatives. Each party may send several representatives, but they have only one vote, given by the senior representative for himself and his subordinates.

§ 485. After the place and time of meeting have been arranged—such place may be neutralised for the purpose of securing the independence of the deliberations and discussions—the representatives meet and constitute themselves by exchanging their commissions and electing a president and other officers. It is usual, but not obligatory,[843] for the Secretary for Foreign Affairs of the State within which the congress meets to be elected president. If the difficulty of the questions on the programme makes it advisable, special committees are appointed for the purpose of preparing the matter for discussion by the body of the congress. In such discussion all representatives can take part. After the discussion follows the voting. The motion must be carried unanimously to consummate the task of the congress, for the vote of the majority has no power whatever in regard to the dissenting parties. But it is possible that the majority considers the motion binding for its members. A protocol is to be kept of all the discussions and the voting. If the discussions and votings lead to a final result upon which the parties agree, all the points agreed upon are drawn up in an Act, which is signed by the representatives and which is called the Final Act or the General Act of the congress or conference. A party can make a declaration or a reservation in signing the Act for the purpose of excluding a certain interpretation of the Act in the future. And the Act may expressly stipulate freedom for States which were not parties to accede to it in future.

III TRANSACTIONS BESIDES NEGOTIATION

Bluntschli, § 84—Hartmann, § 91; Gareis, § 77—Liszt, § 20.

§ 486. International transaction is the term for every act on the part of a State in its intercourse with other States. Besides negotiation, which has been discussed above in §§ 477-482, there are eleven other kinds of international transactions which are of legal importance—namely, declaration, notification, protest, renunciation, recognition, intervention, retorsion, reprisals, pacific blockade, war, and subjugation. Recognition has already been discussed above in §§ 71-75, as has also intervention in §§ 134-138, and, further, subjugation in §§ 236-241. Retorsion, reprisals, pacific blockade, and war will be treated in the second volume of this work. There are, therefore, here to be discussed only the remaining four transactions—namely, declaration, notification, protest, and renunciation.

§ 487. The term "declaration" is used in three different meanings. It is, first, sometimes used as the title of a body of stipulations of a treaty according to which the parties engage themselves to pursue in future a certain line of conduct. The Declaration of Paris, 1856, the Declaration of St. Petersburg, 1868, and the Declaration of London, 1909, are instances of this. Declarations of this kind differ in no respect from treaties.[844] One speaks, secondly, of declarations when States communicate to other States or urbi et orbi an explanation and justification of a line of conduct pursued by them in the past, or an explanation of views and intentions concerning certain matters. Declarations of this kind may be very important, but they hardly comprise transactions out of which rights and duties of other States follow. But there is a third kind of declarations out of which rights and duties do follow for other States, and it is this kind which comprises a specific international transaction, although the different declarations belonging to this group are by no means of a uniform character. Declarations of this kind are declarations of war, declarations on the part of belligerents concerning the goods they will condemn as contraband, declarations at the outbreak of war on the part of third States that they will remain neutral, and others.

§ 488. Notification is the technical term for the communication to other States of the knowledge of certain facts and events of legal importance. But a distinction must be drawn between obligatory and merely usual notification.

Notification has of late been stipulated in several cases to be obligatory. Thus, according to article 34 of the General Act of the Berlin Congo Conference of 1885, notification of new occupations and the like on the African coast is obligatory. Thus, further, according to article 84 of the Hague Convention for the peaceful adjustment of international differences, in case a number of States are parties to a treaty and two of the parties are at variance concerning the interpretation of such treaty and agree to have the difference settled by arbitration, they have to notify this agreement to all other parties to the treaty. Again, according to article 2 of the Hague Convention concerning the Commencement of Hostilities, 1907, the outbreak of war must be notified to the neutral Powers, and so must the declaration of a blockade,[845] according to article 11 of the Declaration of London, 1909.

Apart from such cases in which notification is stipulated as obligatory, it is in principle not obligatory, although in fact it frequently takes place because States cannot be considered subject to certain duties without the knowledge of the facts and events which give rise to these duties. Thus it is usual to notify to other States changes in the headship and in the form of government of a State, the establishment of a Federal State, an annexation after conquest, the appointment of a new Secretary for Foreign Affairs, and the like.

§ 489. Protest is a formal communication on the part of a State to another that it objects to an act performed or contemplated by the latter. A protest serves the purpose of preservation of rights, or of making it known that the protesting State does not acquiesce in and does not recognise certain acts. A protest can be lodged with another State concerning acts of the latter which have been notified to the former or which have otherwise become known. On the other hand, if a State acquires knowledge of an act which it considers internationally illegal and against its rights, and nevertheless does not protest, such attitude implies renunciation of such rights, provided a protest would have been necessary to preserve a claim. It may further happen that a State at first protests, but afterwards either expressly[846] or tacitly acquiesces in the act. And it must be emphasised that under certain circumstances and conditions a simple protest on the part of a State without further action is not in itself sufficient to preserve the rights in behalf of which the protest was made.[847]

§ 490. Renunciation is the deliberate abandonment of rights. It can be given expressis verbis or tacitly. If, for instance, a State by occupation takes possession of an island which has previously been occupied by another State,[848] the latter tacitly renounces its rights by not protesting as soon as it receives knowledge of the fact. Renunciation plays a prominent part in the amicable settlement of differences between States, either one or both parties frequently renouncing their claims for the purpose of coming to an agreement. But it must be specially observed that mere silence on the part of a State does not imply renunciation; this occurs only when a State remains silent, although a protest is necessary to preserve a claim.

CHAPTER II TREATIES

I CHARACTER AND FUNCTION OF TREATIES

Vattel, II. §§ 152, 153, 157, 163—Hall, § 107—Phillimore, II. § 44—Twiss, I. §§ 224-233—Taylor, §§ 341-342—Bluntschli, § 402—Heffter, § 81—Despagnet, Nos. 435-436—Pradier-Fodéré, II. Nos. 888-919—Rivier, II. pp. 33-40—Nys, III. pp. 18-20 and 43-48—Calvo, III. §§ 1567-1584—Fiore, II. Nos. 976-982—Martens, I. § 103—Bergbohm, "Staatsverträge und Gesetze als Quellen des Völkerrechts" (1877)—Jellinek, "Die rechtliche Natur der Staatenverträge" (1880)—Laghi, "Teoria dei trattati internazionali" (1882)—Buonamici, "Dei trattati internazionali" (1888)—Nippold, "Der völkerrechtliche Vertrag" (1894)—Triepel, "Völkerrecht und Landesrecht" (1899), pp. 27-90.

§ 491. International treaties are conventions or contracts between two or more States concerning various matters of interest. Even before a Law of Nations in the modern sense of the term was in existence, treaties used to be concluded between States. And although in those times treaties were neither based on nor were themselves a cause of an International Law, they were nevertheless considered sacred and binding on account of religious and moral sentiment. However, since the manifold intercourse of modern times did not then exist between the different States, treaties did not discharge such all-important functions in the life of humanity as they do now.

§ 492. These important functions are manifest if attention is given to the variety of international treaties which exist nowadays and are day by day concluded for innumerable purposes. In regard to State property, treaties are concluded of cession, of boundary, and many others. Alliances, treaties of protection, of guarantee, of neutrality, and of peace are concluded for political purposes. Various purposes are served by consular treaties, commercial[849] treaties, treaties in regard to the post, telegraphs, and railways, treaties of copyright and the like, of jurisdiction, of extradition, monetary treaties, treaties in regard to measures and weights, to rates, taxes, and custom-house duties, treaties on the matter of sanitation with respect to epidemics, treaties in the interest of industrial labourers, and treaties with regard to agriculture and industry. Again, various purposes are served by treaties concerning warfare, mediation, arbitration, and so on.

I do not intend to discuss the question of classification of the different kinds of treaties, for hitherto all attempts[850] 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. For treaties may, on the one hand, be 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. On the other hand, treaties may be concluded for all kinds of other purposes. 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 (§§ 556-568b).

§ 493. The question as to the reason of the binding force of international treaties 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 this 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[851] again in the self-restraint exercised by States in becoming a party to a treaty. Some writers[852] assert that it is the contracting parties' own will which gives binding force to their treaties, and others[853] 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 answer must categorically 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 put how it is possible to speak of a legally binding force in treaties 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[854] above the States which could enforce it, so international treaties are not deficient of a legally binding force because there is no judicial authority for the enforcement of their stipulations.

II PARTIES TO TREATIES

Vattel, II. §§ 154-156, 206-212—Hall, § 108—Westlake, I. p. 279—Phillimore, II. §§ 48-49—Halleck, I. pp. 275-278—Taylor, §§ 361-365—Wheaton, §§ 265-267—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, III. pp. 20-24—Calvo, III. §§ 1616-1618—Fiore, II. Nos. 984-1000, and Code, Nos. 743-749—Martens, I. § 104—Nippold, op. cit. pp. 104-112—Schoen in Z.V. V. (1911), pp. 400-431.

§ 494. The so-called right of making treaties is not a right of 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 to such treaties only according to their competence to conclude. It is impossible to lay down a hard-and-fast rule concerning such 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.[855] Thus, again, it depends upon the 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.

§ 495. The treaty-making power of all States is exercised by their heads, either personally or through representatives appointed by these heads. The Holy Alliance of Paris, 1815, was personally concluded by the Emperors of Austria and Russia and the King of Prussia. And when, on June 24, 1859, the Austrian 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 authorises 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.[856] 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.

§ 496. For some non-political purposes of minor importance, certain minor functionaries are recognised as competent to exercise the treaty-making power of their States. 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[857] 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.

§ 497. Although the heads of States are regularly, 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 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.[858] Such constitutional restrictions, although they are not of great importance in Great Britain,[859] play a prominent part in the Constitutions of most countries. Thus, according to article 8 of the French Constitution, the President exercises the treaty-making 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 articles 1, 4, and 11 of the Constitution of the German Empire, the Emperor exercises the treaty-making power; but such treaties as concern the frontier, commerce, and several other matters, are not valid without the co-operation of the Bundesrath and the Reichstag. Again, according to article 2, section 2, of the Constitution of the United States, the President can only ratify treaties with the consent of the Senate.

§ 498. A treaty being a convention, mutual consent of the parties is necessary. Mere proposals made by one party and not accepted by the other are, therefore, 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 either with a preliminary treaty or with a so-called pactum de contrahendo. A preliminary treaty requires the mutual consent of the parties with regard to certain important points, whereas other points have to be settled by the definitive treaty to be concluded later. Such preliminary treaty is a real treaty and therefore binding upon the parties. A pactum de contrahendo requires likewise the mutual consent of the 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 stipulates an obligation of the parties to settle the respective points by a treaty, whereas the former does not.

§ 499. As a treaty will lack binding force without real consent, absolute freedom of action on the part of 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 treaty on the ground that its freedom of action was interfered with at the time.[860] This must be 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.

§ 500. Although a treaty was concluded with the real consent of the parties, it is nevertheless not binding if the consent was given in error, or under a delusion 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, § 30—Bluntschli, §§ 410-416—Heffter, § 83—Ullmann, § 97—Bonfils, No. 819—Despagnet, No. 445—Pradier-Fodéré, II. Nos. 1080-1083—Mérignhac, II. p. 640—Rivier, II. pp. 57-63—Nys, III. p. 24—Fiore, II. Nos. 1001-1004, and Code, Nos. 755-758—Martens, I. § 110—Jellinek, "Die rechtliche Natur der Staatenverträge" (1880), pp. 59-60—Nippold, op. cit. pp. 181-190.

§ 501. The object of treaties is always an obligation, whether mutual between all the parties or unilateral 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 this kind are from the very beginning null and void.[861]

§ 502. Obligations to be performed by a State other than a contracting party cannot be the object of a treaty. A treaty stipulating such an obligation would be null and void. But this must not be confounded with the 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. Such obligation as is inconsistent with obligations under treaties previously concluded by one State with another cannot be the object of a treaty with a third 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,[862] and the Powers met at the Congress of Berlin to arrange matters by mutual consent.

§ 504. An obligation to perform a physical impossibility[863] 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 non-fulfilment of the obligation would arise for the other party, such treaty being legally null and void.

§ 505. It is a customarily recognised rule of the Law 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 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.

§ 506. It is a unanimously recognised customary rule of International Law that obligations which are at variance 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. 279-281—Wheaton, § 253—Moore, V. § 740—Bluntschli, §§ 417-427—Hartmann, §§ 46-47—Heffter, §§ 87-91—Ullmann, § 80—Bonfils, Nos. 821-823—Pradier-Fodéré, II. Nos. 1084-1099—Mérignhac, II. p. 645—Rivier, II. pp. 64-68—Nys, III. pp. 25-28—Fiore, II. Nos. 1004-1006, and Code, Nos. 759-763—Martens, I. § 112—Jellinek, "Die rechtliche Natur der Staatenverträge" (1880), p. 56—Nippold, op. cit. pp. 178-181.

§ 507. The Law of Nations includes no rule which prescribes a necessary form of treaties. A treaty is, therefore, concluded as soon as the mutual consent of the parties becomes clearly apparent. Such consent must always be given expressly, for a treaty cannot be concluded by tacit consent. But it matters not whether an agreement is made in writing, orally, or by symbols. Thus, in time of war, the exhibition of a white flag symbolises the proposal of an agreement as to a brief truce for the purpose of certain negotiations, and the acceptance of the proposal on the part of the other side by the exhibition of a similar symbol establishes a convention as binding as any written treaty. Thus, too, history tells of an oral treaty of alliance, secured by an oath, concluded in 1697 at Pillau between Peter the Great of Russia and Frederick III., Elector of Brandenburg.[864] Again, treaties are sometimes concluded through an exchange of diplomatic notes between the Secretaries for Foreign Affairs of two States or through the exchange of personal letters between the heads of two States. However, as a matter of reason, treaties usually take the form of a written[865] document signed by duly authorised representatives of the contracting parties.