Allen Z. Hertz was senior advisor in the Privy Council Office serving Canada's Prime Minister and the federal cabinet. He formerly worked in Canada's Foreign Affairs Department and earlier taught history and law at universities in New York, Montreal, Toronto and Hong Kong. He studied European history and languages at McGill University (B.A.) and then East European and Ottoman history at Columbia University (M.A., Ph.D.). He also has international law degrees from Cambridge University (LL.B.) and the University of Toronto (LL.M.).
Foreword
This is first publication of the integral text of "Treaty Obligation from the Protestant Reformation to 1919." However, portions dealing with "Honour's Role in the International States' System" were published in Denver Journal of International Law and Policy, Vol. 31 (2002), pp. 113-155, and also appear as a separate posting on this website. Research for this present essay took place in Ottawa during service with the Privy Council Office which greatly assisted by regularly making conveniently available a variety of materials, including some rare books, from the Supreme Court of Canada Library, the National Library of Canada and the Library of Parliament. "Treaty Obligation from the Protestant Reformation to 1919" is current to the end of 2002.
The Part 1: Introduction discusses the thesis that before the First World War the moral or "natural law" principle that "agreements are to be kept" (pacta sunt servanda) was binding in honour alone. Part 2 reviews classical international law’s assessment of the treaty as a legal source. Part 3 shows that, before the First World War, treaties were not always accepted as an integral part of international law. Part 4 explains why treaties were then not seen as legally binding, and describes how international law governed treaties via pacta sunt servanda as a moral or "natural law" requirement. Here in this present posting, Part 5 illuminates the State’s moral personality with reference to both personification and treaties as “contracts of kings.” Honour is identified as one of the principal features of pre-1914 European civilization and international relations in Part 6. Part 7 portrays the “old diplomacy” as a milieu focusing on honour. Part 8 shows what kings, prime ministers, philosophers and lawyers had to say about treaties binding in honour. The honour of treaties as seen in Britain and the USA is the subject of Parts 9 and 10 respectively. Part 11 recalls that, before 1914, all treaties were a “gentlemen’s agreement” -- an expression which only made sense in public international law after 1919, i.e. as a specific exception to the new rule that treaties are normally binding in law. Part 12 treats the “new diplomacy” that arose during the First World War and discusses the rise of the legal paradigm. Finally, Part 13 highlights the law-centered order inaugurated by the 1919 Paris Peace Settlement which created conditions supporting 20th-century discourse about treaties as legally binding.
Can the State have moral personality?
References to moral obligation invite reflection on the nature of moral personality. Morality is a system of normative thought involving ideals of right human conduct and a process of ethical judgment. Morality clearly has an external social aspect.[1] But, can morality be understood without the individual human conscience as an internal forum? Morality has something to do with:
appeals to conscience, made in the expectation that once the person addressed is reminded of the moral principle at stake, he may be led by guilt or shame to respect it and make amends.[2]In this sense, the study of ethics recognizes the individual human being as a moral personality. According to
This is the personality of a moral agent, who acts under a self-imposed moral rule, and who is morally responsible for any offence against that rule. This personality... is resident only in an individual. A group is not a moral being in the moral sphere.... There is no moral being of the group which can be visited with our praise or blame. There is no moral personality of the group which does good, or is responsible for evil.[3]
Nonetheless, persistent psychological factors support personification as a fiction of both international law and relations, disciplines where scholars have noted the phenomenon and its effects.[4]
Pufendorf used “compound moral person” as the term for both a civil society like the State and a sacred society like the Roman Catholic Church.[5] He saw the “civil state” as the strongest compound moral person, existing “like one person, endowed with understanding and will, and performing other particular acts, distinct from those of the private members.”[6] Noting that all moral persons have “something fictitious in them,” Wolff applied the same natural law to both men and States, because he viewed the State as an individual person living in a state of nature.[7] With its own understanding and proper will, the State for Vattel was a moral person, capable of obligations and rights.[8] Martens too portrayed “each nation” as “a moral being living in a state of nature.”[9] With sophistication, Mackintosh observed:
Pufendorf used “compound moral person” as the term for both a civil society like the State and a sacred society like the Roman Catholic Church.[5] He saw the “civil state” as the strongest compound moral person, existing “like one person, endowed with understanding and will, and performing other particular acts, distinct from those of the private members.”[6] Noting that all moral persons have “something fictitious in them,” Wolff applied the same natural law to both men and States, because he viewed the State as an individual person living in a state of nature.[7] With its own understanding and proper will, the State for Vattel was a moral person, capable of obligations and rights.[8] Martens too portrayed “each nation” as “a moral being living in a state of nature.”[9] With sophistication, Mackintosh observed:
Writers on general jurisprudence have considered states as moral persons; a mode of expression which has been called a fiction of law, but which may be regarded with more propriety as a bold metaphor, used to convey the important truth, that nations, though they acknowledge no common superior, and neither can, nor ought, to be subjected to human punishment, are yet under the same obligations mutually to practise honesty and humanity, which would have bound individuals — if the latter could be conceived ever to have subsisted without the protecting restraints of government.[10]
To deny personality to the state is just as absurd as to assert it... The personality of the state is not a fact whose truth or falsehood is a matter for argument. It is what international lawyers have called ‘the postulated nature’ of the state. It is a necessary fiction or hypothesis — an indispensable tool devised by the human mind for dealing with the structure of a developed society...[13] So long as the state is the accepted form [of political organization], its personification is a necessary fiction.[14]
Personification aid borrowing from domestic law?
Parry saw international law as historically derived from two main elements. He pointed first to antiquity’s ius gentium — essentially a law governing the relations of individuals as between themselves, and to a lesser degree their relations to a single state (i.e.
This teaching of the law of nature becomes important and suggestive [because] it transfers to States the juridical ideas and requirements worked out earlier by generations in the domain of private law. Once States are conceived as persons on a footing of equality brought together under the protection of incontested sovereignty, their collective life is treated as that of normal persons in private law; they enter into transactions, assume responsibilities, conclude conventions, make claims, demand compensations, commit delicts. In this latter respect the international doctrine of Grotius and Gentili assumed a distinctly realistic aspect. A State could not plead immunity from accusation in fact on the ground that it is merely a fiction and that Univeristas non delinquit [a corporation cannot commit an offence].[17]
Treaties begin as contracts of kings?
In the Middle Ages, treaties were simply contracts between kings because sovereignty was literally nothing more than the charismatic leadership of a king as a human being.[22] Because the Middle Ages lacked the concept of “the State,” there could then be no “international law” as a legal system governing the conduct of a community of independent States. According to Belgian international lawyer Ernest Nys (1851-1920):
The entire medieval period carries over into the political realm the formalities of private law. Almost all the leading statesmen were — if not jurists of some standing — at the very least trained in the science of law. They handled public affairs as a lawyer deals with private business.[23]The Middle Ages did not distinguish between public and private law, between a diplomatic envoy and an ordinary agent.[24] Agreements between rulers took a variety of forms, including exchange of letters patent, or common acts and indentures more contractual in nature. Because there was no distinction between treaty and contract, medieval jurists found it natural to assume that treaties were governed by the principles of the Roman law of contract.[25]
The distinction between treaty and contract was also absent from medieval canon law. Looking at the individual ruler as a Christian subject to papal authority, the canonists held him to the penitential discipline of pacta sunt servanda for both his contracts and treaties.[26] The common point was that, like most contracts, the medieval treaty was invariably backed by the ruler’s oath on his immortal soul.[27] For example, see the oath depicted by Shakespeare in King John, Act III, Scene 1.
Later in early modernEurope , this personal swearing coexisted with the emerging notion of the State, partly because of the impossibility of oath taking by a soulless juridical entity like "the State."[28] As shrewdly observed by a 19th-century Machiavelli scholar: "The idea of the inviolability of public faith is essentially a modern idea; it was not thought of in Machiavelli’s day; there was then no national or international conscience."[29] Certainly, late 16th-century treaties were still conceptually close enough to the private-law contract for Bacon to recommend renewal and affirmation on the accession of new sovereigns.[30] And, French lawyer and political philosopher Jean Bodin (1530-1596) needed to caution:
Later in early modern
It must... be so provided that he who demands a promise demands it for himself and for his successors in the kingdom, and that he who promises does so on his own behalf and for his heirs and successors, in order that the obligation be effectual.[31]This advice was long heeded, as evidenced by some 18th-century ratifications still explicitly binding heirs and successors in title.[32]
Personality of "the State"
A clear concept of the State as “an impersonal form of political authority distinct from both rulers and ruled” developed only gradually from the late 16th century.[33] Soon thereafter, a surprisingly modern idea of the State as the political expression of free men united in society was articulated by Grotius who, in this regard, was imitated by later natural law theorists like Pufendorf and Vattel.[34] They all believed in the social contract and saw monarchy, contrasted with democracy and aristocracy, as a form of government in which a king exercised sovereignty as the State’s representative. Grotius affirmed that “sovereignty, which is exercised through a king, does not cease to be the sovereignty of the people.”[35] According to Vattel:
The name of the reigning sovereign is frequently inserted in the treaty for the sole purpose of showing with what State the treaty has been concluded, and not with the intention of giving it to be understood that the treaty has been concluded with him personally.[36]Thus, both Grotius and Pufendorf significantly had no trouble distinguishing public-law treaties from municipal-law contracts made by the king as a private person.[37] And, all three writers differentiated the king’s purely “personal” treaties from “real” treaties made for public purposes and binding on the State beyond his death.[38]
Link between kings and treaties persist?
Whether a domestic system saw the king as embodying the State or as constitutional “head of State,” European countries — with the exception of
Although the ministers of sovereign princes and states treat by virtue of their full powers, they do not conclude nor sign any treaty, but with the clause of ratification by their masters. This ratification consists of a writing signed with the prince’s own hand, and sealed with his seal, by which he approves and ratifies all the contents of the treaty concluded in his name, by his ministers. The said treaty is therein repeated word for word before the act of ratification, by which he promises to execute it faithfully.[41]
William Blackstone (1723-1780) was Vinerian Professor of English Law at Oxford University England England
With regard to foreign concerns, the king is the delegate or representative of his people.... In the king therefore, as in a center, all the rays of his people are united, and form by that union a consistency, splendour, and power, that make him feared and respected by foreign potentates.... What is done by the royal authority, with regard to foreign powers, is the act of the whole nation: what is done without the king’s concurrence is the act only of private men.[43]
Carr said ancien régime treaties rested on the good faith of sovereigns:
University of London Frederick
What was at stake was the personal execution of personal promises and obligations; and the sense of solidarity among monarchs was sufficient to leave them with a certain desire to keep their word to one another.[44]This dovetails with the portrayal by diplomat and historian Sir Harold Nicolson (1886-1968):
In the days of absolute monarchy the personal honour of the King was involved in the maintenance of contracts or treaties which had been signed and ratified in his name. Monarchs were not invariably sensitive to this obligation, but they were at least aware... that their own reputation for integrity was directly and personally at stake.[45]This understanding of treaty obligation was confirmed by Ragnhild Marie Hatton (1913-1995), Professor of International History at the
In 18th-century France, instruments of both full powers and ratification specifically referred to promising “en foi et parole de roi” — on the faith and word of a king.[48] Analysing rulers’ promises to ratify in instruments of full powers, British barrister, historian and public servant John Mervyn Jones (1912-1957) concluded: "The 17th and 18th centuries looked upon a treaty as a personal compact between monarchs binding, like all contracts, by the law of nature."[49] Concurring with Vattel’s view that “full powers are nothing else than an unlimited power of attorney,” Mervyn Jones explained:
The relation of the diplomatic agent to the sovereign was altogether assimilated to that of the principal and the agent in private law; and a treaty was regarded as analogous to a private-law contract.[50]This old habit of identifying treaties with private law’s bilateral contracts goes some way towards explaining why, until the last quarter of the 19th century, States were slow to embrace the multilateral agreement (traité collectif) as a medium for their most solemn undertakings.[51]
Hostile to monarchy, the French Revolution challenged the validity of treaties between kings as contrasted with those between nations.[52] Revolutionaries hotly argued that ancien régime treaties had to yield to natural law and the popular will — in particular, to the will of the French people.[53] The impracticality of this self-serving doctrine was grasped even before Napoleon started making treaties in his own name as “Emperor of the French.”[54] Although liberal sympathy for the self-determination of peoples helped unravel the 1815 Vienna
This 19th-century “age of constitutional development” saw the kings’ personal promise to ratify disappear from instruments of full powers, and ratification cease to be a requirement of customary international law.[56] Yet, major treaties into the 20th century were still drafted in “head of State” form, i.e. monarch to monarch.[57] To some extent, this was the old juridical framework coexisting with new realities — an example of what Nicolson called “the noticeable time-lag” marking diplomacy’s adaptation to the facts of the political systems which it represents.[58]
Notes to Part 5
[1]. Antony Allot, The Limits of Law (London
[2]. H.L.A. Hart, The Concept of Law (Oxford , 1961), Ch.
[3]. Otto Friedrich von Gierke, Natural Law and the Theory of Society: 1500-1800, intro. & trans. Sir Ernest Barker (Cambridge
[4]. “Personification” and “sophisticated realism” are discussed by C.A.W. Manning, The Nature of International Society, 2nd ed. (New York, 1975), 26-27, 31-32; see also Edwin DeWitt Dickinson, “The Analogy between Natural Persons and International Persons in the Law of Nations,” Yale Law Journal, vol. 26 (1916-1917), 564-591; Sir Hersch Lauterpacht, Private Law Sources and Analogies of International Law (London, 1927), § 33:79-80; John C. Garnett, Commonsense and the Theory of International Politics (London, 1984), 119-127; Edward Hallett Carr, The Twenty Years’ Crisis 1919-1939, 2nd ed. (London, 1946), 147-152.
[5]. Pufendorf, Bk. I, Ch.
[6]. Ibid., Bk. VII, Ch.
[7]. Wolff, Prolegomena, vol. 2, §§ 2-3, 21:9, 17.
[8]. Vattel, Introduction, § 2:3.
[9]. Martens, Compendium of the Law of Nations, Introduction, § 1.2:2.
[10]. Mackintosh, “Discourse on the Law of Nature and Nations,” 345.
[11]. Dickinson
[12]. Lauterpacht, Private Law Sources, § 33:79.
[13]. Carr, Twenty Years’ Crisis, 148-149.
[14]. Ibid., 149, n. 1.
[15]. Clive Parry, “The Function of Law in the International Community,” in Manual of Public International Law, ed. Max Sørensen (London
[16]. Thomas Hobbes, De Cive: A Critical Edition, by Howard Warrender (Oxford
[17]. Sir Paul Vinogradoff, The Collected Papers of Paul Vinogradoff, vol. 2: Jurisprudence (Oxford , 1928), Ch.
[18]. Henry Kissinger, Diplomacy (New York, 1994), 32.
[19]. Jefferson to Louise Elisabeth, Duchess de la Rouchefoucault d’Enville, New York, Apr. 2, 1790, in The Papers of Thomas Jefferson, ed. Julian Boyd, vol. 16 (Princeton, 1961), 291; Willard Sterne Randall, Thomas Jefferson: A Life (New York, 1993), 56.
[20]. Parry, “Function of Law in the International Community,” 17-18; for the treaty’s “public law” character, including absence of monetary reparation for breach, see Parry, “Of Treaties,” 234-239.
[21]. Lauterpacht, Private Law Sources, 13, 159.
[22]. Friedrich August, Freiherr von der Heydte, Die Geburtsstunde des souveränen Staates: Ein Beitrag des Völkerrechts und des politischen Denkens (Regensburg, 1952); Walter Ullmann, “Zur Entwicklung des Souveränitätsbegriff im Spätmittelalter,” in Scholarship and Politics in the Middle Ages: Collected Studies (London, 1978), Ch. 9, and “The Medieval Papal Court as an International Tribunal,” Virginia Journal of International Law, vol. 11 (1971), 356-371, at 358.
[23]. Ernest Nys, Les origines du droit international (Brussels-Paris, 1894), 325.
[24]. John Neville Figgis, Studies of Political Thought From Gerson to Grotius, 2nd ed. (Cambridge , 1916), 12-14; Donald E. Queller, The Office of Ambassador in the Middle Ages (Princeton , 1967), 28.
[25]. M. de Maulde-la-Claviere, La Diplomatie au Temps de Machaivel (Paris
[26]. Berman, Law and Revolution, 245; agreements with infidels were forbidden, but Popes said Muslims too were subject to natural law and pacta sunt servanda, see Paul Guggenheim, “Contribution à l’histoire des sources du droit des gens,” Recueil des Cours, vol. 94: Part 2 (1958), 1-83, at 18.
[27]. Hertz, “Medieval Treaty Obligation,” 430-433.
[28]. Otto Friedrich von Gierke, Das Deutsche Genossenschaftsrecht, new impres. (Graz
[29]. L. Arthur Burd , Il Principe by Niccolò Machiavelli (Oxford
[30]. Certain Observations Made Upon a Libel Published This Present Year, 1592, in Works of Francis Bacon, vol. 8:190-191.
[31]. Jean Bodin, The Six Bookes of a Commonweale: Facsimile of the 1606 English Translation, Corrected and Supplemented By a New Comparison with the French and Latin Texts, ed. Kenneth Douglas McRae (Cambridge, Mass., 1962), Latin, A150; for a contrary view, see Grotius, Bk. II, Ch. 16, § 4(2):419.
[32]. For example, see Treaty of Peace between the Emperor and Spain, and France, signed at Rastadt, 6 Mar. 1714, in CTS, vol. 29:1-34, at 32; General and Definitive Treaty of Peace between France, Great Britain and the Netherlands, signed at Aix-la-Chapelle, 18 Oct. 1748, in CTS, Vol 38:297-398, at 327, 329.
[33]. Quentin Skinner, “The State,” in Political Innovation and Conceptual Change, ed. Terence Ball, James Farr, Russell L. Hanson (Cambridge
[34]. Grotius, Bk. I, Ch. 1, § 14(1):44; Pufendorf, Bk. VII, Ch. Ch.
[35]. Grotius, Bk. II, Ch.
[36]. Vattel, Bk. II, Ch.
[37]. Grotius, Bk. II, Ch. 14, §§ 1(2), 2(2):381-382; Pufendorf, Bk. VII, Ch. 2, § 14:518 and Bk. VIII, Ch.
[38]. Grotius, Bk. II, Ch. 16, § 16:418-419 and Bk. III, Ch. 20, § 1:804; Pufendorf, Bk. VIII, Ch. 9, § 6:708; Vattel, Bk. II, Ch.
[39]. Monarchy’s significance is explored by Eric Hobsbawm, “Mass-Producing Traditions: Europe, 1870-1914,” in The Invention of Tradition, ed. Eric Hobsbawm and Terence Ranger (Cambridge
[40]. Maine , International Law, 55-57; Westlake
[41]. François de Callières, The Art of Diplomacy, ed. H.M.A. Keens-Soper and Karl M. Schweizer (New York, 1983), 156.
[42]. Sir William Blackstone, Commentaries on the Laws of England , vol. 1 (Oxford
[43]. Ibid., 245.
[44]. Edward Hallett Carr, Nationalism and After (London
[45]. Sir Harold Nicolson, Diplomacy, 3rd ed. (London
[46]. Ragnhild M. Hatton, “Louis XIV and his Fellow Monarchs,” in Louis XIV and Europe, ed. Hatton (London
[47]. Histoire de la guerre de sept ans, in Mémoires de Frédéric II, vol. 1:456.
[48]. For example, see Treaty of Peace between the Emperor and Spain, and France, signed at Rastadt, 6 Mar. 1714, in CTS, vol. 29:1-34, at 27, 33; General and Definitive Treaty of Peace between France, Great Britain and the Netherlands, signed at Aix-la-Chapelle, 18 Oct. 1748, in CTS, Vol 38:297-398, at 328; Definitive Treaty of Peace between France, Great Britain and Spain, signed at Paris, 10 Feb. 1763, in CTS, vol. 42:279-345, at 307, 311, 314, 338; Jan. 13, 1778 full powers for negotiations with USA, in G. Chinard, The Treaties of 1778 and Allied Documents, intro. James Brown Scott (Baltimore, 1928), 22; Definitive Treaty of Peace and Friendship between France and Great Britain, signed at Versailles, 3 Sept. 1783, in CTS, vol. 48: 437-480, at 454, 475.
[49]. John Mervyn Jones, Full Powers and Ratification: A Study in the Development of Treaty-Making Procedure (Cambridge
[50]. Vattel, Bk. II, Ch.
[51]. Krystyna Marek, “Contribution à l’étude de l’histoire du traité multilatéral,” 23, 38; Paul Guggenheim, “Contribution à l’histoire des sources du droit des gens,” 70-71.
[52]. July 9, 1790, Lord Gower said the Republican club known as Société de 1789 declared “treaties between Kings to be conspiracies against the people of their respective countries,” see The Despatches of Earl Gower, English Ambassador at Paris From June 1790 to Aug. 1792, ed. Oscar Browning (Cambridge, 1885), 12; Gower reported (Aug. 27, 1790) that the National Assembly’s Diplomatic Committee wanted to transform existing compacts into “national” treaties by replacing aggressive, dynastic clauses with “purely defensive and commercial stipulations” useful to both peoples, see ibid., 26-28; this “revision and confirmation of treaties” was resented by Louis XVI who argued that diplomatic appointments and the “conduct of negotiations have been reserved to the King,” see Declaration of 20 June 1791, in A Documentary Survey of the French Revolution, ed. John Hall Stewart (New York, 1951), 205-210, at 207.
[53]. David Armstrong, Revolution and World Order: The Revolutionary State in International Society (Oxford , 1993), 87-90, 98, 102-105, 205-217; Peter J. Stanlis, “Edmund Burke and the Law of Nations,” American Journal of International Law, vol. 47 (1953), 397-413, at 404-405; Edmund Burke, Reflections on the Revolution in France
[54]. E.g., see Treaty of Peace between Austria and France, signed at Pressburg, 26 Dec. 1805, in CTS, vol. 58:340-349, at 341: “Napoléon par la grâce de Dieu et par les constitutions, empereur des Français, roi d’Italie”; Treaty of Peace between France and Prussia, signed at Tilsit, 9 July 1807, in CTS, vol. 59:256-263, at 257: “Sa Majesté l’Empereur des Français, Roi d’Italie, Protecteur de la Confédération du Rhin”; before the Empire’s birth (May 18, 1804) France’s treaties were in the name of “le Premier Consul de la République Française , au nom du peuple française,” and before that in the name of “la République Française, ” see Treaty for the Cession of Louisiana between France and the United States, signed at Paris, 30 Apr. 1803, in CTS, vol. 57: 27-37, at 29, 37; and Treaty of Peace and Friendship between France and Sardinia, signed at Paris, 15 May 1796, in CTS, vol. 53:99-106, at 101.
[55]. Apr. 18, 1859, Lords, Parl. Deb., 3rd ser., vol. 153:840.
[56]. Mervyn Jones, Full Powers, 15.
[57]. McNair, Law of Treaties, 18-19; Ludwig Bittner, “Das österreichisch-ungarische Ministerium des Äußern, seine Geschichte und seine Organisation,” Berliner Monatshefte, vol. 15 (Oct. 1937), 819-843, at 825-826.
[58]. Nicolson, Diplomacy, 69-70; Mervyn Jones, Full Powers, 12.
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