Diplomacy and the Study of International Relations/Part 2/Chapter 5

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5

Treaties

'Tout le monde sçait', wrote l'Abbé de Mably, 'que les Traités sont les archives des Nations, qu'ils renferment les titres de tous les peuples, les engagements réciproques qui les lient, les loix qu'ils se sont imposées, les droits qu'ils ont acquis ou perdus. II est, si je ne me trompe, peu de connoissances aussi importantes que celle-la pour des hommes d'Etat, & même pour de simples citoyens s'ils sçavent penser; il en est peu cependant qui soient plus négligées.'[1]

It was well said by the editor of a Collection of Treaties published in 1772 that to a statesman a Collection of Treaties is a code or body of Law, and to him is of the same use as is a Collection of the Statutes to the lawyer.[2] But their historical place and value must never be lost to sight. They are to be viewed as marking points in the movement of thought.[3]

The relation of a Treaty to 'the Law' may well give rise to doubt. On this thorny subject the conclusions of Madison,[4] the American statesman and one of the three contributors to The Federalist, had the approval of Sir Travers Twiss.[5] Treaties, said Madison, may be considered in several relations ​to the Law of Nations according to the several questions that are to be decided.

'They may be considered as simply repeating or affirming the General Law: they may be considered as making exceptions to the General Law, which are to be a particular Law to the parties themselves: they may be considered as explanatory of the Law of Nations on points where its meaning is otherwise obscure or unsettled, in which case they are first a Law between the parties themselves, and next a sanction to the General Law, according to the reasonableness of the explanation, and the number and character of the parties to it: lastly, treaties may be regarded as forming a voluntary or positive Law of Nations. Whether the stipulations of a treaty are to be considered as an affirmance, or an exception or an explanation, may sometimes appear upon the face of the treaty; sometimes, being naked stipulations, their character must be determined by resorting to other evidences of the Law of Nations. In other words, the question concerning the Treaty must be decided by the Law, not the question concerning the Law by the Treaty.'

Collection of Treaties

There are many collections[6] of treaties, and of treaty-documents, both general and national. Only a few need be mentioned here.

(a) General:

Dumont, Corps Universel Diplomatique;[7]

Koch et Schöll, Histoire abrégée des Traités from 1648 to 1815,[8] with full text of some and a connecting narrative, and the revival and continuation of the work by leComte de Garden;

​Martens (G. F. de), Recueil des principaux traités de paix, d'alliance … depuis 1761 jusqu'à nos jours[9] (1808), with continuations[10] by G. F. de Martens himself, his nephew C. de Martens, and others, down to our own day—a standard work;

Das Staatsarchiv — Sammlung der officiellen Actenstücke zur Geschichte der Gegenwart;[11] Archives diplomatiques — Recueil mensuel de droit international, de diplomatie et d'histoire;[12] Albin, Les Grands Traités politiques since 1815.[13]

(b) British:

Rymer, Foedera,[14] and Syllabus to the work by Sir T. D. Hardy, issued for the Record Commission;[15]

C. Jenkinson (later, Earl of Liverpool), A Collection of all the Treaties of Peace … between Great Britain and other Powers from 1648 to 1783;[16]

​Chalmers, A Collection of Maritime Treaties of Great Britain and other Powers;[17]

Hertslet, A Complete Collection of the Treaties and Conventions at present subsisting between Great Britain & Foreign Powers; so far as they relate to Commerce & Navigation; to the Repression and Abolition of the Slave Trade; and to the Privileges & Interests of the Subjects of the High Contracting Parties. The Whole in English, & the Modern Treaties & most important Documents, also in the Foreign Languages in which they were signed.[18]

Treaty Series.[19]

Originals of British Treaties are in the Public Record Office; also Treaty Papers and State Papers, Foreign. The British Museum Catalogues (MSS.) should also be consulted.

Footnotes

  1. ↑ Le Droit Public de l'Europe, fondé sur les Traités, par M. l'Abbé de Mably, 1717 (2 vols.), 3rd ed. (3 vols.), 1764. Preface to vol. i.
  2. ↑ A Collection of all the Treaties of Peace, Alliance, and Commerce, between Great Britain and other Powers, from the Revolution in 1688, to the Present Time. 2 vols. (1772).
  3. ↑ W. E. Hall, cited above, p. 113.
  4. ↑ Examination of the British Doctrine, 1806, p. 39.
  5. ↑ The Law of Nations … in Time of Peace, 2nd ed. (1884), pp. 164–5.
  6. ↑ A considerable impetus to the study of treaties was given by Leibnitz towards the beginning of the eighteenth century. On the unfavouring eyes with which the Cabinets of Europe viewed the publication of their treaties in a collection, see Travers Twiss, op. cit., pp. xxix–xxx.
  7. ↑ 8 vols., 1726–31.
  8. ↑ 15 vols., 1815–17.
  9. ↑ 8 vols., 1791–1808.
  10. ↑ Nouveau Recueil, 16 vols., Nouveau Recueil Général, &c.
  11. ↑ A periodical publication since 1861. It is the chief collection for European States as a whole, and is especially designed as a collection of diplomatic documents.
  12. ↑ First and second series, 1861–1900; continued thereafter, four volumes being published yearly.
  13. ↑ 1910. See also The Great European Treaties of the Nineteenth Century, 1918 (Clarendon Press).
  14. ↑ Archiva regia reserata, sive foedera…inter reges Angliae et alios quosvis ab ineunte saeculo XIImo. The work began with the reign of Henry I and came down to 1654. There were subsequent editions which need to be distinguished. Rymer's work was a Government publication, suggested by that of Leibnitz. He was Historiographer Royal from 1692 to 1714.
  15. ↑ 2 vols., 1869–72 (vol. i, to 1377; vol. ii, 1377–1654).
  16. ↑ 3 vols., 1785. This is the second edition of the work published in 2 vols. in 1772. In the Advertisement (pp. v–vi) to this earlier work it was said: 'A Collection of Treaties was published in the Year 1732; and is now very scarce. The Treaties contained in that Work are not only very irregularly arranged, but upon comparing them with the detached copies published by Authority, were found to be very inaccurately printed; and some Treaties were wholly omitted.' The work of 1732 was in 4 vols.
  17. ↑ 2 vols., 1790.
  18. ↑ By Lewis Hertslet, Esq., Librarian and Keeper of the Papers, Foreign Office. The work was published in 2 vols., 1820. It has been continued to date. The Treaties with Austria go back to the Treaty of Alliance signed at Töplitz, October 3, 1813; with Denmark, to the Treaty signed at Whitehall, February 13, 1660–1661; with France, to the Treaty of Utrecht, March 31–April 11, 1713; with Portugal, to the Treaty signed at London, January 29, 1642; with Spain, to the Treaty signed at Madrid, May 13–23, 1667; with Sweden, to the Treaty signed at Upsal, April 11, 1654; with Turkey, to the Capitulation and Articles of Peace of 1675; with the United States of America, to the Treaty of Peace signed at Ghent, December 24, 1814. For Treaties, Acts, and Declarations on the Slave Trade, and on trade with the Colonies, see especially vol. iii (1827).
  19. ↑ First volume 1892, and a volume yearly thereafter.
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