(Livy ix. 5) and the convention of Closter Seven in 1757. (4) Unlike a. contract in private law, a, treaty, even though made in pursuance of a full power, is, according to modern views, of no effect till it is ratified. It may be remarked that ratification, though hitherto not thought to be required for "declarations,” such as the Declaration of Paris of 1856, was expressly stipulated for in the case of those signed at the peace conferences of 1899 and 1907. (5) No special form is necessary fora treaty, which in theory may be made without writing. It need not even appear
on the face of it to be a contract between the parties, but may take the form of a joint declaration, or of an exchange of notes. Latin was at one time the language usually employed in treaties, and it continued to be so employed to a late date by the emperor and the pope. Treaties to which several European powers of
different nationalities are parties are now usually drawn up in
French (the use of which became general in the time of Louis
XIV), but the treaties of Aix-la-Chapelle of 1748 and 1784
contain, as does the final act of the congress of Vienna, a protest
against the use of this language being considered obligatory.
French is, however, exclusively used in the treaties constituting
the great “international unions”; and bilingual treaties
are sometimes accompanied by a, third version in French,
to be decisive in case of alleged variances between the other
two. A great European treaty has usually commenced
“In the name of the Most Holy and Indivisible Trinity,”
or, when the Porte is a party, “In the name of Almighty
God.” (6) It is sometimes said that a treaty must have a
lawful object, but the danger of accepting such a statement
is apparent from the use which has been made of it by writers who deny the validity of any cession of national territory,
or even go so far as to lay down, with Fiore, that "all should be regarded as void which are in any way opposed to the development
of the free activity of a nation, or which hinder the exercise
of its natural rights.” (7) The making of a treaty is sometimes
accompanied by acts intended to secure its better performance. The taking of oaths, the assigning of "conservatoires pacis" and the giving of hostages are now obsolete, but revenue is mortgaged, territory is pledged, and treaties of guarantee are entered into for this purpose.
A “transitory convention” operates at once, leaving no duties to be subsequently performed, but with reference to conventions of other kinds questions arise as to the duration of the obligation created by them; in other words, as to the moment at which those obligations come to an end. This Duration.may occur by the dissolution of one of the contracting states, by the object-matter of the agreement ceasing to exist, by full performance, by performance becoming impossible, by lapse of the time for which the agreement was made, by contraries consensus or mutual release, by “denunciation” by one party under a power reserved in the treaty. By a breach on either side the treaty usually becomes, not void, but voidable. A further cause of the termination of treaty obligations is a total change of circumstances, since a clause “rebus sic stantibus" is said to be a tacit condition in every treaty.[1] Such a contention can only be very cautiously admitted. It has been put forward by Russia in justification of her repudiation of the clauses of the Treaty of Paris neutralizing the Black Sea, and of her engagements as to Batoum contained in the Treaty of Berlin. The London protocol of 1871, with a View to prevent such abuses, lays down, perhaps a little too broadly, “that it is an essential principle of the law of nations that no power can liberate itself from the engagements of a treaty, nor modify the stipulations thereof, unless with the consent of the contracting powers, by means of an amicable arrangement.” Treaties are in most cases suspended, if not terminated, by the outbreak of a war between the contracting parties (though the Spanish decree of the 23rd of April 1898 went too far when it asserted that the war with the United States had terminated “all conventions that have been in force up to the present between the two countries”), and are therefore usually revived in express terms in the treaty of peace.
The rules for the interpretation of treaties are not so different from those applicable to contracts in private law as to need here a separate discussion.
Collections of treaties are either (i.) general or (ii.) national.
i. The first to publish a general collection of treaties was Leibnitz, whose Codex juris gentium, containing documents from 1097 to 1497, “ea quae sola inter liberos populos legum sunt loco” appeared in 1693, and was followed in 1700 by the Mantissa. The Corps universe! diplomatique du droit des gens of Collections.J. Dumont, continued by J. Barbeyrac and Rousset in thirteen folio volumes, containing treaties from A.D. 315 to 1730, was published in 1726–1739. Wenck's Corpus juris gentium recentissimi (3 vols. 8vo, 1781–1795) contains:treaties from 1735 to 1772. The 8vo Reeueil of G. F. de Martens, continued by C. de Martens, Saalfeld, Murhard, K. F. Samwer, K. Hopf, F. Stoerk and H. Triepel, commenced in 1791 with treaties of 1761, and is still in progress. The series in 1910 extended to eighty-eight volumes; that for 1910 being the third of the Nouveau recueil genéral (23me série). See also the Recueil international des traités de xxe siècle (1904, sqq.), by Descamps en Renault, and the following periodical publications: Das Staatsarchiv, Sammlung der ojiciellen Actenstücke zur Geschichte der Gegenwart (Leipzig, commencing in 1861); Archives diploma ti ues (Stuttgart, since 1821); Archives diplomatiques, recueil mensueil de diplomatie et d'histoire (Paris, since 1861); and Hertslet's British and Foreign State Papers, from the Termination of the War of 1814 to the Latest Period, compiled at the Foreign Office by the Librarian and Keeper of the Papers (London, since 1819, and still in progress).
ii. The more important collections of national treaties are those of MM. Neumann and de Plasson from 1855, and of the commission for modern history from 1903, for Austria; Beutner for the German Empire, 1883; C. Calvo for “l’Amérique latine,” 1862–1869; de Clercq for France, 1864–1908; De Garcia de la Vega for Belgium, 1850, &c., Lagemans and Breukelman for the Netherlands, 1858, &c.; Soutzo for Greece, 1858; Count Solar de la Marguerite for Sardinia, 1836–1861; Olivart for Spain, 1890, &c.; Da Castro for Portugal, 1856–1879; Rydberg for Sweden, 1877; Kaiser, 1861, and Eichmann, 1885, for Switzerland; Baron de Testa, 1864, &c., Aristarchi Bey 1873–1874, and Effendi Noradounghian, 1897–1903, for Turkey; F. de Martens for Russia (the 9 vols. published 1874–1907 contain the treaties made by Russia with Austria, Germany, Great Britain and France respectively); W. F. Mayers for China, 1877. The official publication for Italy begins in 1864 (see also the collection by Luigi Palma, 1879, &c.), for Spain in 1843, for Denmark in 1874. The treaties of Japan were published by authority in 1899. Those of the United States are contained in the Statutes at Large of the United States, and in the Treaties, Conventions, etc., between the United States of America and Other Powers, 1776–1909 (Washington, 1910); also in the collections of J. Elliott (1834) and H. Minot (1844–1850); see also Mr Bancroft Davis's Notes upon the Treaties of the United States with other Powers, preceded by a list of the Treaties and Conventions with Foreign Powers, chronologically arranged and followed by an Analytical Index and a Synoptieal Index of the Treaties (1873). In England no treaties were published before the 17th century, such matters being thought “not fit to be made vulgar.” The treaty of 1604 with Spain was, however, published by authority, as were many of the treaties of the Stuart kings. Rymer's Foedera was published, under the orders of the government, in twenty volumes, from 1704 to 1732; but for methodical collections of the earlier British treaties we are indebted to private enterprise, which produced three volumes in 1710–1715, republished with a fourth volume in 1732. Other three volumes appeared in 1772–1781, the collection commonly known as that of C. Jenkinson (3 vols.) in 1785 and that of G. Chalmers (2 vols.) in 1795. The recent treaties made by Great Britain, previously dispersed through the numbers of the London Gazette or embed ed in masses of diplomatic correspondence presented to parliament at irregular intervals, are now officially published as soon as ratified in a special 8vo. “Treaty Series” of parliamentary papers commenced in 1902. J. Macgregor published (1841–1844) eight volumes of commercial treaties, but the great collection of the commercial treaties of Great Britain is that of L. Hertslet, librarian of the foreign office, continued by his son, Sir Edward Hertslet, and later holders of the same office, entitled A Complete Collection of the Treaties and Conventions and Reciprocal Regulations at present subsisting between Great Britain and Foreign Powers, and of the Laws and Orders in Council concerning the same, so far as they relate to Commerce and Navigation, the Slave Trade, Post Office, &c., and to the Privileges and Interests of the Subjects of the Contracting Parties (24 vols., 1820–1907). Sir Edward Hertslet also commenced in 1875 a series of volumes containing Treaties and Tariffs regulating the Trade between Britain and Foreign Nations, and Extracts of Treaties between Foreign Powers, containing the Most Favoured Nation Clauses applicable to Great Britain. Both of these publications are still continued. He also published, in 1891, Treaties, &c., concluded between Great Britain and Persia, and between Persia and Foreign Powers; and, in 1896, a similar work on treaties with China The treaties affecting British India are officially set out, with historical notes, in A Collection of Treaties,
- ↑ Cf. Bynkershoek, Quest. sur pub. vol. ii. ch. 10.
