12. Treaty Obligation from the Protestant Reformation to 1919: Part 12 The New Diplomacy and Rise of the Legal Paradigm

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. 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. Here in this present posting, 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.



The new diplomacy 

Arising from the pre-war critique of Radical Liberals and Independent Labourites in the United Kingdom, and Socialists on the continent, “New” or “Democratic Diplomacy” in the USA was supported after 1914 by a strong left and liberal-left “progressive internationalist” current.^[1]  Rhetorically populist, the New Diplomacy signalled a power shift from aristocracy to middle class, and from Europe to America as the new centre of Western civilization.  After 1914, the defects of the Old Diplomacy were seen as prominent among the causes of the First World War.^[2]  Responsibility for the holocaust was placed squarely on the heads of the foreign ministers and ambassadors who had represented the traditional ruling class of king, court and aristocracy.^[3]  For example, Woodrow Wilson’s 1918 State of the Union address called for “a peace secure against the violence of irresponsible monarchs and ambitious military coteries.”^[4]  The issue of treaty compliance Wilson had already addressed when urging Congress to recognize that a state of war existed between the USA and Germany:

A steadfast concert for peace can never be maintained except by a partnership of democratic nations.  No autocratic government could be trusted to keep faith within it or to observe its covenants.^[5]

Wilson’s bias against autocracy was echoed by British academic, jurist, historian and Liberal politician James Viscount Bryce (1838-1922) who expressed views directly opposite to the received wisdom of Bodin and Louis XIV:

Let us also remember that the wars of the past have been mostly made by despots, or by oligarchies; and it is by them that the faith of treaties has been mostly broken.  But now, in nearly all the great States, power has passed to the people, and the people can be trusted, better than the monarchs or the oligarchs of former days, both to realize the value of peace and to do all they can to secure it.  Democracies also have been sometimes swept by passion or lured into war by misrepresentation; yet they are likely to feel a clearer duty both to refrain from aggression and to check it when attempted by others.  They will better recognise the obligations of international honour and good faith, and their responsibility to mankind at large.  They will feel more respect for the public opinion of the world.^[6]

The rise of the legal paradigm

Former USA Secretary of State Henry Kissinger recently remarked:

World War I started not because countries broke their treaties, but because they fulfilled them to the letter. [...] Every country was concerned above all with living up to formal treaty obligations rather than to an overall concept of long-range common interest.^[7]  

Significantly, entirely the opposite was the assessment of the generation of 1914-1918. They were then certain that failure to observe treaty obligations — or rather the absence of international machinery to compel treaty performance — had been the cardinal defect of the international States' system.^[8]  They saw this as the key lacuna that enabled German Chancellor Bethmann-Hollweg to say “scrap of paper”^[9] for the 1839 London Treaty guarantying Belgium’s neutrality.^[10]

In repudiating the discredited honour-based diplomacy of kings, the 1914-1918 generation had nowhere to turn but to a legal paradigm.  This was a natural reflex because of the fundamental polarity between cultures of honour and legality.^[11]  No longer willing to perpetuate the ancien régime, the middle class reached for the nearby analogies of domestic law — a realm entirely comfortable because the centuries-old legal profession had always had a bourgeois ethos.^[12]  This borrowing was specifically advocated by France’s Prime Minister Georges Clemenceau.  He expressed his solidarity “with President Wilson who, by establishing the foundations of the League of Nations, has had the honor of transferring the essential principles of national law into international law.” ^[13]  Lawyers, including Wilson, Lloyd George and Orlando, were prominent among the League’s founding fathers and a “legal, or rather legalistic, conception of international conflict” was embodied in the Covenant.^[14]

Despite, or because of, Britain’s complex global position, the Foreign Office assumed “diplomacy could solve most problems that arose in world affairs.”^[15]  In this context, pre-1914 Britain was exceptionally committed to the principle of dispute settlement via arbitration.  Viewing international relations as “consciously ruled by law,” the Foreign Office had a marked “respect for legality.”^[16]  This characteristically British attitude, as ultimately expressed in the League of Nations as a war aim, reminded Cambridge University historian Sir Herbert Butterfield (1900-1979) of the Habsburg Monarchy in the age of Metternich.^[17]  This is a significant comparison, because it parallels Kissinger’s reflection:

Because law is the expression of the status quo, Austria [i.e. the Habsburg Monarchy] stood for... the necessity of law and the sanctity of treaties.^[18]  

Such a realist critique sees treaties as the codification of the outcome of the last hegemonic war, when the paramount power won legitimacy for its right to rule.^[19]  This observation by Princeton University’s Robert Gilpin is useful alongside the remark of Oxford University historian A.J.P. Taylor (1906-1990) that the ideological exigencies of the First World War gradually drove the Entente Powers, “rather against their will, to the doctrine of an international order, based upon law instead of upon force.” Fighting for survival as a Great Power, Britain in particular moved ever closer to the doctrine of “the rule of law” as a response to Germany’s astonishing strength.^[20]

USA cooler to the legal paradigm?

Kissinger says the premise that the States’ system should be governed by international law is a deep-rooted USA idea tied to the belief that the same ethical principles should regulate relations between countries and between individuals.^[21]  However, official Washington was in practice slower than London to abandon the rhetoric of honour for that of law.  This reluctance is explained by several considerations:

• First, expanding the rule of law in international affairs was less urgent for the USA as a rising power than for Britain in decline.^[22]  
• Second, the Wilson administration came later to detailed thinking about war aims because the USA was neutral until April 1917.
• Third, the Senate’s constitutional role in treaty making taught presidents that firm commitments are less easily ratified than undertakings with broad exceptions, such as those referring to national honour.^[23]  
• Fourth, Wilson himself was certain the Senate would reject any treaty committing the USA to go to war pursuant to a decision by other countries or an international body.^[24] 
• Fifth,  perhaps due to sad experience as an Atlanta lawyer, Wilson was antipathetic to the practicing profession and quick to reject legalism.^[25] 

Democratic public opinion vs. legalism


Wilson said that lawyers “as a rule immediately tie their hands or powers up in technical legal limitations.”^[26]  Significantly, he told the American Commission to Negotiate Peace: “I don’t want lawyers drafting this treaty.”^[27]  Wilson’s ambivalent attitude to law must also be seen in the light of USA politics.  On the one side was the focus on democracy and social justice of USA “progressive internationalists” like Wilson who was a Democrat; on the other side, the legalism of “conservative internationalists” like Elihu Root and William Howard Taft who were Republicans.^[28]  Believing law to be one of the tools for upholding morality and realizing human progress, Wilson still “preferred to rely upon ‘diplomatic adjustment’ rather than ‘strict legal justice’ in resolving international disputes.”^[29]  Thus, his idea for a League of Nations focused less on devising foolproof machinery for dispute settlement and collective security and more on opening a permanent political forum for the expression and coordination of world public opinion — the key Wilsonian concept.^[30]  His plans were therefore developed with layman Colonel Edward Mandell House, rather than with Secretary of State Robert Lansing, an international lawyer whose “legalistic opinions” were distasteful to the White House.^[31]

Although Wilson’s speeches frequently referred to international law, he never abandoned the discourse of honour.  For example, in May 1916 Wilson talked about a “new and more wholesome diplomacy” resting on “the same high code of honour that we demand of individuals.”^[32]  His April 1917 war message to Congress twice referred to the future world organization as a “League of Honour.”^[33]  Honour also featured in his July 10, 1919 explanation of the League Covenant:

There is no provision for military action except upon advice of the [League] Council, advice given to the several governments.  Of course it follows that the several governments will take that advice or not, as they please, and it will be a matter of honor with them whether they will or not.  There is no legal obligation.^[34]  

However, Wilson’s yardstick for measuring national honour was democratic public opinion rather than the ancien régime’s aristocratic values.

Was honour no longer sufficient?

As early as August 1915, Sir Edward Grey wrote to Colonel House about a:

League of Nations that could be relied on to insist that disputes between any two nations must be settled by arbitration, mediation, or conference of others. [Grey said that] international law has hitherto had no sanction. The lesson of this war is that the powers must bind themselves to give it a sanction.^[35] 

A month later, he asked House:

Would the President propose that there should be a League of Nations binding themselves to side against any power which broke a treaty... or which refused, in case of dispute, to adopt some other method of settlement than that of war?^[36]

Grey’s successor as Foreign Secretary, Arthur James Balfour asked: “If existing Treaties are no more than scraps of paper, can fresh treaties help us?”  Relaying to Washington British principles for peace, Balfour in January 1917 portrayed the pre-war “community of nations” as “plentifully supplied indeed with international laws, but with no machinery for enforcing them.”  His three conditions for a durable peace included ensuring treaty compliance:

Behind International law and behind all Treaty arrangements for preventing or limiting hostilities some form of International sanction should be devised which would give pause to the hardiest aggressor.^[37]   

Re-establishing “the sanctity of treaties” was also the first of Lloyd George’s three conditions for “a just and lasting peace” in his war aims speech to the Trades Union Congress (January 5, 1918).^[38]

The contrast between the USA focus on honour and the British fixation on law became explicit in June 1918.  Sharing plans for a League of Nations, House copied to Wilson a letter written to Lord Robert Cecil, then British Minister of Blockade.  With respect to treaty obligation, House’s plan stayed within pre-war thinking by relying on dishonour as the sanction for breach of treaty:

One of the most essential features of any league seems to me to be the installation of a moral standard such as that maintained among individuals of honor.  Even before Germany smashed the international fabric, reprehensible conduct was condoned under the broad cover of patriotism; actions which in individuals would have been universally condemned and the perpetrators ostracised from society.  I believe that the most vital element in bringing about a world-wide reign of peace is to have the same stigma rest upon the acts of nations as upon the acts of individuals.  When the people of a country are held up to the scorn and condemnation of the world because of the dishonourable acts of their representatives, they will no longer tolerate such acts.  To bring this about will not I think be so difficult as it would seem, and when this condition is realized, a nation may be counted upon to guard its treaty obligations with the same fidelity as an individual guards his honor.^[39]

Now Assistant Secretary of State for Foreign Affairs with special responsibility for planning a League of Nations, Cecil took issue with House’s emphasis on honour:

I notice that you propose that the components of the league should make a profession of faith to the effect that they will abide by a code of honour.^[40]  I think it would be all to the good to have such a profession included in the instrument by which the league of peace was constructed, but I am afraid I do not think that by itself it could be relied upon.  The example of Germany in this war shows that under the pressure of false teaching and national danger there is no crime which a civilized nation will not commit, and the same has been found true over and over again in history.  I am convinced that unless some form of coercion can be devised which will work more or less automatically no league of peace will endure.  You refer to the history of the civilization of individuals; but surely the great instrument of law and order has been the establishment of the doctrine of the supremacy of law.  So long as codes of law were only, or mainly codes of honour or good conduct they were always disobeyed by anyone who was sufficiently powerful to do so.^[41]

Notes to Part 12

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[1].  For an early account, see Kennedy, Old Diplomacy; “democratic diplomacy” is discussed in Nicolson, Diplomacy; USA origins are surveyed by Thomas J. Knock, To End All Wars: Woodrow Wilson and the Quest for a New World Order (Princeton, 1992); insightful is Arno J. Mayer, Political Origins of the New Diplomacy, 1917-1918 (New Haven, 1959).

[2].  Ibid., 1-58; Steiner, Foreign Office and Foreign Policy, 171; Michael Howard, “Ethics and Power in International Policy,” in The Causes of Wars and Other Essays (London, 1984), 49-64, at 52; The Diplomats: 1919-1939, ed. Gordon A. Craig and Felix Gilbert (Princeton, 1953), vol. 1: 6, 22-23; Joll, Origins of the First World War, 42-68.

[3].  Gordon A. Craig, War, Politics and Diplomacy: Selected Essays (New York-Washington, 1966), 204, 208-210; Zimmern, League of Nations, 2.

[4].  State of the Union Message, Speaking Copy, 2 Dec. 1918, PWW, vol. 53:274-286, at 277.

[5].  Address to Joint Session of Congress, 2 Apr., 1917, PWW, vol. 41:519-527, at 524.

[6].  Viscount Bryce’s introduction (Sept. 13, 1918) to The League of Nations by Viscount Grey and others (Oxford, 1919), 16-17.

[7].  Kissinger, Diplomacy, 211; for the alliance system’s ossification, see Klaus Hildebrand, “The Crisis of 1914,” in German Foreign Policy From Bismarck to Adenauer, trans. Louise Willmot (London, 1989), 85-117, at 90-93; Charles S. Maier, “Wargames: 1914-1919,” in The Origin and Prevention of Major Wars, ed. Robert I. Rotberg and Theodore K. Rabb (Cambridge, 1989), 249-279, at 254: “It... was not the binding nature of the alliances, but the possibility for defection, that proved more destabilizing.  Vienna and St. Petersburg sought reassurances beyond the letter of the texts, needed demonstrative state visits, and pursued pledges of support—and, in 1914, extracted them because Paris and Berlin feared that they would seem indifferent.”

[8].  Taylor, Struggle for Mastery, 535-537; for adding international sanctions to the States’ system, see Hidemi Suganami, The Domestic Analogy and World Order Proposals (Cambridge, 1989), 79-93.

[9].  Bethmann Hollweg said (Aug. 4, 1914): “Just for a word ‘neutrality’ a word which in war time had so often been disregarded—just for a scrap of paper, Great Britain was going to make war on a kindred nation which desired nothing better than to be friends with her.” See No. 671, Sir Edward Goschen to Sir Edward Grey, Berlin, Aug. 6, 1914, British Documents on the Origins of the War, vol. 11:351; Diary of Edward Goschen, Appendix B: ‘A scrap of paper’, 298-302.

[10].  CTS, vol. 88:411-426.

[11].  Pitt-Rivers, “Honour and Social Status,” 30-31, and “Honor,” 509-510; Bernhardi, Germany and the Next War, 24-28; McAleer, Dueling, 30; Demeter, German Officer-Corps, 117-138; Deák, Beyond Nationalism, 128-138.

[12].  The “non-clerical literate profession” dated from the 13th century, see J.H. Baker, An Introduction to English Legal History, 2nd ed. (London, 1979), 133-150.

[13].  The Deliberations of the Council of Four (Mar. 24-June 28, 1919): Notes of the Official Interpreter Paul Mantoux, trans.& ed. Arthur S. Link (Princeton, 1992), vol. 1, Meeting XXV, 187-197, at 193.

[14].  Northedge, League of Nations, 58-59.

[15].  Kennedy, Rise and Fall of the Great Powers, 231.

[16].  Parry, “Foreign Policy and International Law,” 109-110.

[17].  For the League of Nations as a Metternichian “attempt to freeze the status quo,” see Sir Herbert Butterfield, Christianity, Diplomacy and War (London, 1953), 115-116.

[18].  Henry A. Kissinger, A World Restored: The Politics of Conservatism in a Revolutionary Age (New York, 1964), 7.

[19].  Gilpin, War and Change, 34; Bernhardi, Germany and the Next War, 25-27.

[20].  Taylor, Struggle for Mastery, 535-537; Kennedy, Rise and Fall of the Great Powers, 209-215, 231; Eksteins, Rites of Spring, xv: “Britain was, in fact, the major conservative power of the fin-de-siècle world.  First industrial nation, agent of the Pax Britannica, symbol of an ethic of enterprise and progress based on parliament and law, Britain felt not only her pre-eminence in the world but her entire way of life threatened by the thrusting energy and instability Germany was seen to typify.”

[21].  Kissinger, Diplomacy, 18, 20, 22, 30, 32-34, 45-46, 52-53, 55, 161, 222-228, 234, 247, 415, 427, 438, 477, 544.

[22].  For USA’s geopolitical position, see, Kissinger, Diplomacy, 18, 20, 30-39; on Britain’s decline, see ibid., 38; Gilpin, War and Change, 194-197; Paul M. Kennedy, The Rise and Fall of the Great Powers: Economic Change and Military Conflict from 1500 to 2000 (London, 1988), 224-232; Wilson, Policy of the Entente, 70-74.

[23].  Wilson described the Senate’s “treaty-marring power” in Congressional Government (1885), reprinted in PWW, vol. 4:38-39, 130-131; for the Senate’s role, see Bruce Ackerman and David Golove, Is NAFTA Constitutional? (Cambridge, Mass., 1995).

[24].  Wilson to Edward Mandell House, 22 Mar. 1918, PWW, vol. 47:105; William H. Taft re 28 Mar. 1918 meeting with Wilson, ibid., 200-201; for Wilson’s strenuous efforts to portray the League Covenant as a “moral, not a legal, obligation,” see Conversation with Members of the Senate Foreign Relations Committee, Conference at the White House, Aug. 19, 1919, PWW, Vol 62:343, 350-351.

[25].  Dunne, United States and the World Court, 21; for Wilson’s legal practice, see Walworth, Woodrow Wilson, Bk. I, 23, 34-36; Heckscher, Woodrow Wilson, 58-59; Alexander L. George and Juliette L. George, Woodrow Wilson and Colonel House: A Personality Study, 2^nd ed. (New York, 1964), 18-20.

[26].  Wilson’s late 1916 words to lawyer Samuel Thompson, in latter’s Jan. 15, 1917 letter asking for Federal Trade Commission appointment, see PWW, vol. 40:490.

[27].  Jan. 8, 1919, quoted by USA Secretary of State Robert Lansing, PWW, vol. 54:4.

[28].  Knock, To End All Wars, 49-69, 267-268.

[29].  Dunne, United States and the World Court, 21.

[30].  Conversation with Members of the Senate Foreign Relations Committee, Conference at the White House, Aug. 19, 1919, PWW, vol. 62:363, 372, 388-389.

[31].  Walworth, Wilson and His Peacemakers, 8.

[32].  Address to League to Enforce Peace, May 27, 1916, PWW, vol. 37:113; the League of Nations was then seen by USA “progressive internationalists” like Wilson as arising from stalemate and mediation, but by Sir Edward Grey and USA “conservative internationalists” as a war aim realizable via Entente victory, see Knock, To End All Wars, 57-58; David French, British Strategy and War Aims 1914-1916 (London, 1986), 190-191.

[33].  Address to Joint Session of Congress, 2 Apr. 1917, PWW, vol. 41:519-527, at 524.

[34].  The Complete Press Conferences 1913-1919, ed. Robert C. Hildebrand (Princeton, 1985), PWW, vol. 50:790.

[35].  Sir Edward Grey to Colonel House, London, Aug. 10, 1915, Intimate Papers of Colonel House, vol. 2:87-88.

[36].  Sir Edward Grey to Colonel House, London, Sept. 22, 1915, ibid., 89.

[37].  Jan. 16, 1917, British Ambassador Sir Cecil Arthur Spring Rice gave USA Secretary of State Robert Lansing a message which Balfour had written (Jan. 13) to Rice, see PWW, vol. 40: 499-503.

[38].  Cabled to Woodrow Wilson on Jan. 5, 1918, see PWW, vol. 45:486-489.

[39].  Edward Mandell House to Lord Robert Cecil, Magnolia, Massachusetts, June 25, 1918, PWW, vol. 48:424-426; honour also features prominently in “Suggestion for a Covenant of a League of Nations” sent by House to Wilson on July 16, 1918, see ibid., 630-637; Northedge, League of Nations, 31-33.

[40].  An echo of House’s draft can be seen in the Preamble of the Covenant of the League which refers to “open, just and honourable relations between nations.”

[41].  Lord Robert Cecil to Edward Mandell House, London, July 22, 1918, PWW, vol. 49:225-228, at 226.