International Law. A Treatise
Chapter 70 : 119-122--Calvo, III. ---- 1643-1648--Fiore, II. Nos. 1008-1009, and Code, Nos. 768-778-

119-122--Calvo, III. ---- 1643-1648--Fiore, II. Nos. 1008-1009, and Code, Nos. 768-778--Martens, I. ---- 65 and 114--Nippold, op. cit.

pp. 151-160.

[Sidenote: Effect of Treaties upon Contracting Parties.]

-- 519. By a treaty the contracting parties in the first place are concerned. The effect of the treaty upon them is that they are bound by its stipulations, and that they must execute it in all its parts. No distinction should be made between more and less important parts of a treaty as regards its execution. Whatever may be the importance or the insignificance of a part of a treaty, it must be executed with good faith, for the binding force of a treaty covers equally all its parts and stipulations. If, however, a party to a treaty concluded between more than two parties signs it with a reservation as regards certain articles, such party is not bound by these articles, although it ratifies[884] the treaty.

[Footnote 884: See above, -- 518.]

[Sidenote: Effect of Treaties upon the Subjects of the Parties.]

-- 520. It must be specially observed that the binding force of a treaty concerns the contracting States only, and not their subjects. As International Law is a law between States only and exclusively, treaties can have effect upon States and can bind States only and exclusively. If treaties contain stipulations with regard to rights and duties of the contracting States' subjects,[885] courts, officials, and the like, these States have to take such steps as are necessary, according to their Munic.i.p.al Law, to make these stipulations binding upon their subjects, courts, officials, and the like. It may be that according to the Munic.i.p.al Laws of some countries the official publication of a treaty concluded by the Government is sufficient for this purpose, but in other countries other steps are necessary, such as, for example, special statutes to be pa.s.sed by the respective Parliaments.[886]

[Footnote 885: See above, -- 289.]

[Footnote 886: The distinction between International and Munic.i.p.al Law as discussed above, ---- 20-25, is the basis from which the question must be decided whether international treaties have a direct effect upon the officials and subjects of the contracting parties.]

[Sidenote: Effect of Changes in Government upon Treaties.]

-- 521. As treaties are binding upon the contracting States, changes in the government or even in the form of government of one of the parties can as a rule have no influence whatever upon the binding force of treaties. Thus, for instance, a treaty of alliance concluded by a State with const.i.tutional government remains valid, although the Ministry may change. And no head of a State can s.h.i.+rk the obligations of a treaty concluded by his State under the government of his predecessor. Even when a monarchy turns into a republic, or _vice versa_, treaty obligations regularly remain the same. For all such changes and alterations, important as they may be, do not alter the person of the State which concluded the treaty. If, however, a treaty stipulation essentially presupposes a certain form of government, then a change from such form makes such stipulation void, because its execution has become impossible.[887]

[Footnote 887: See below, -- 542. Not to be confounded with the effect of changes in government is the effect of a change in international status upon treaties, as, for instance, if a hitherto full-sovereign State becomes half- or part-Sovereign, or _vice versa_, or if a State merges entirely into another, and the like. This is a case of succession of States which has been discussed above, ---- 82-84; see also below, -- 548.]

[Sidenote: Effect of Treaties upon third States.]

-- 522. According to the principle _pacta tertiis nec nocent nec prosunt_, a treaty concerns the contracting States only; neither rights nor duties, as a rule, arise under a treaty for third States which are not parties to the treaty. But sometimes treaties have indeed an effect upon third States. Such an effect is always produced when a treaty touches previous treaty rights of third States. Thus, for instance, a commercial treaty conceding more favourable conditions than hitherto have been conceded by the parties thereto has an effect upon all such third States as have previously concluded commercial treaties containing the so-called _most-favoured-nation clause_[888] with one of the contracting parties.

[Footnote 888: See below, -- 580, but note the American interpretation of this clause.]

The question arises whether in exceptional cases third States can acquire rights under such treaties as were specially concluded for the purpose of creating such rights not only for the contracting parties but also for third States. Thus, the Hay-Pauncefote Treaty between Great Britain and the United States of 1901, and the Hay-Varilla Treaty between the United States and Panama of 1903, stipulate that the Panama Ca.n.a.l to be built shall be open to vessels of commerce and of war of all nations, although Great Britain, the United States, and Panama only are parties.[889] Thus, further, article 5 of the Boundary Treaty of Buenos Ayres of September 15, 1881, stipulates that the Straits of Magellan shall be open to vessels of all nations, although Argentina and Chili only are parties. Again, the Treaty of Paris, signed on March 30, 1856, and annexed to the Peace Treaty of Paris of 1856, stipulates that Russia shall not fortify the Aland[890] Islands; although this stipulation was made in the interest of Sweden, only Great Britain, France, and Russia are parties. I believe that the question must be answered in the negative, and nothing prevents the contracting parties from altering such a treaty without the consent of third States, provided the latter have not in the meantime acquired such rights through the unanimous tacit consent of all concerned.

[Footnote 889: See above, -- 184.]

[Footnote 890: See above, -- 205, p. 277, note 2.]

It must be emphasised that a treaty between two States can never invalidate a stipulation previously created by a treaty between one of the contracting parties and a third State, unless the latter expressly consents. If, for instance, two States have entered into an alliance and one of them afterwards concludes a treaty with a third State, according to which all conflicts without exception shall be settled by arbitration, the previous treaty of alliance remains valid even in the case of war breaking out between the third State and the other party to the alliance.[891] Therefore, when in 1911 Great Britain contemplated entering, with the United States of America, into a treaty of general arbitration according to which all differences should be decided by arbitration, she notified j.a.pan of her intention, on account of the existing treaty of alliance, and j.a.pan consented to subst.i.tute for the old treaty a new treaty of alliance,[892] article 4 of which stipulates that the alliance shall never concern a war with a third Power with whom one of the allies may have concluded a treaty of general arbitration.

[Footnote 891: See below, -- 573.]

[Footnote 892: See below, -- 569.]

VII

MEANS OF SECURING PERFORMANCE OF TREATIES

Vattel, II. ---- 235-261--Hall, -- 115--Lawrence, -- 134--Phillimore, II. ---- 54-63A--Bluntschli, ---- 425-441--Heffter, ---- 96-99--Geffcken in Holtzendorff, III. pp. 85-90--Ullmann, -- 83--Bonfils, Nos.

838-844--Despagnet, Nos. 451-452--Pradier-Fodere, II. Nos.

1156-1169--Rivier, II. pp. 94-97--Nys, III. pp. 36-41--Calvo, III.

---- 1638-1642--Fiore, II. Nos. 1018-1019, and Code, Nos.

784-791--Martens, I. -- 115--Nippold, op. cit. pp. 212-227.

[Sidenote: What means have been in use.]

-- 523. As there is no international inst.i.tution which could enforce the performance of treaties, and as history teaches that treaties have frequently been broken, various means of securing performance of treaties have been made use of. The more important of these means are oaths, hostages, pledges, occupation of territory, guarantee. Nowadays these means, which are for the most part obsolete, have no longer great importance on account of the gratifying fact that all States are now much more conscientious and faithful as regards their treaty obligations than in former times.

[Sidenote: Oaths.]

-- 524. Oaths are a very old means of securing the performance of treaties, which was constantly made use of not only in antiquity and the Middle Ages, but also in modern times. For in the sixteenth and seventeenth centuries all important treaties were still secured by oaths. During the eighteenth century, however, the custom of securing treaties by oaths gradually died out, the last example being the treaty of alliance between France and Switzerland in 1777, which was solemnly confirmed by the oaths of both parties in the Cathedral at Solothurn.

The employment of oaths for securing treaties was of great value in the times of absolutism, when little difference used to be made between the State and its monarch. The more the distinction grew into existence between the State as the subject of International Law on the one hand, and the monarch as the temporary chief organ of the State on the other hand, the more such oaths fell into disuse. For an oath can exercise its force on the individual only who takes it, and not on the State for which it is taken.

[Sidenote: Hostages.]

-- 525. Hostages are as old a means of securing treaties as oaths, but they have likewise, for ordinary purposes[893] at least, become obsolete, because they have practically no value at all. The last case of a treaty secured by hostages is the Peace of Aix-la-Chapelle in 1748, in which hostages were stipulated to be sent by England to France for the purpose of securing the rest.i.tution of Cape Breton Island to the latter. The hostages sent were Lords Suss.e.x and Cathcart, who remained in France till July 1749.

[Footnote 893: Concerning hostages nowadays taken in time of war, see below, vol. II. ---- 258-259.]

[Sidenote: Pledge.]

-- 526. The pledging of movable property by one of the contracting parties to the other for the purpose of securing the performance of a treaty is possible, but has not frequently occurred. Thus, Poland is said to have pledged her crown jewels once to Prussia.[894] The pledging of movables is nowadays quite obsolete, although it might on occasion be revived.

[Footnote 894: See Phillimore, II. -- 55.]

[Sidenote: Occupation of Territory.]

-- 527. Occupation of territory, such as a fort or even a whole province, as a means of securing the performance of a treaty, has frequently been made use of with regard to the payment of large sums of money due to a State under a treaty. Nowadays such occupation is only resorted to in connection with treaties of peace stipulating the payment of a war indemnity. Thus, the preliminary peace treaty of Versailles in 1871 stipulated that Germany should have the right to keep certain parts of France under military occupation until the final payment of the war indemnity of five milliards of francs.

[Sidenote: Guarantee.]

-- 528. The best means of securing treaties, and one which is still in use generally, is the guarantee of such other States as are not directly affected by the treaty. Such guarantee is a kind of accession[895] to the guaranteed treaty, and a treaty in itself--namely, the promise of the guarantor eventually to do what is in his power to compel the contracting party or parties to execute the treaty.[896] Guarantee of a treaty is a species only of guarantee in general, which will be discussed below, ---- 574-576_a_.

[Footnote 895: See below, -- 532.]

[Footnote 896: Nippold (p. 266) proposes that a universal treaty of guarantee should be concluded between all the members of the Family of Nations guaranteeing for the present and the future all international treaties. I do not believe that this well-meant proposal is feasible.]

VIII

PARTIc.i.p.aTION OF THIRD STATES IN TREATIES

Hall, -- 114--Wheaton, -- 288--Hartmann, -- 51--Heffter, -- 88--Ullmann, -- 81--Bonfils, Nos. 832-834--Despagnet, No.

448--Pradier-Fodere, II. Nos. 1127-1150--Rivier, II. pp.

89-93--Calvo, III. ---- 1621-1626--Fiore, II. Nos.

1025-1031--Martens, I. -- 111.

[Sidenote: Interest and Partic.i.p.ation to be distinguished.]

-- 529. Ordinarily a treaty creates rights and duties between the contracting parties exclusively. Nevertheless, third States may be interested in such treaties, for the common interests of the members of the Family of Nations are so interlaced that few treaties between single members can be concluded in which third States have not some kind of interest. But such interest, all-important as it may be, must not be confounded with partic.i.p.ation of third States in treaties. Such partic.i.p.ation can occur in five different forms--namely, good offices, mediation, intervention, accession, and adhesion.[897]

[Footnote 897: That certain treaties concluded by the suzerain are _ipso facto_ concluded for the va.s.sal State does not make the latter partic.i.p.ate in such treaties. Nor is it correct to speak of partic.i.p.ation of a third State in a treaty when a State becomes party to a treaty through the fact that it has given a mandate to another State to contract on its behalf.]