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Treaty Sanctions
Published online by Cambridge University Press: 12 April 2017
Extract
The events in Manchuria during the fall of 1931 have again focussed considerable attention upon the problems of treaty enforcement, a matter which has attracted great interest since Bethmann-Hollweg’s famous statement about “a scrap of paper” in 1914. The discussion and study of sanctions, of implementation and putting “teeth” into pacts and treaties, have been widespread since 1919, and two or three schools of thought have arisen in regard to this question, which is one of important current political and legal concern.
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References
1 Oppenheim, L., International Law, 3rd ed., 1, 655; Protocol of London, Jan. 17, 1871, 61 British and Foreign State Papers, 1198.
2 Certainly, however, it cannot be said that all treaties at all times and under all circumstances, are binding by international law. A treaty might contain provisions counter to the law, such as the classic example of a possible convention providing for the appropriation of certain parts of the sea beyond the customary limits of territorial jurisdiction. The sanetions provided for in a treaty contrary to the law would be sanctions merely of that treaty and not of the law.
3 Hershey,, A., The Essentials of International Public Law and Organization, 1929. 452.Google Scholar
4 This practice dates back to ancient times. See, for example, the treaty between Rhodes and Hieraptyna, approximately 300 B.C. which says, “no Rhodian shall ever carry arms against a citizen of Hieraptyna under penalty of being subject to the same punishment as if he had carried arms against his native city of Rhodes,” Egger, A., Études Historiques sur les Traités Publics chez les Grecs et chez les Romains, 1866, 297; for later practise see Art. LXVIII of the Treaty of Münster, Oct. 24, 1648 “… for the mere validity of all these articles, this treaty shall be looked upon as a perpetual law of the Empire,” Horsley,, W., The Political History of Europe, 1746, 14 Google Scholar; see also Anglo-American Slave Trade Treaty, April 7, 1862, Art. 5, DeMartens, Nouveau Recueil, XVII, I, 259; the International Labor Conventions adopted at Washington in 1919, ibid., Nouveau Recueil, 3me Sér., XIX, 72 et seq., and the Convention for the Suppression of Traffic in Obscene Publications, 1923, ibid., 135. Art. VI, para. 2, of the United States Constitution is also to be noted in this connection.
5 DeMartens, Nouveau Recueil Général, 2me Sér., IX, 392. (1883.)
6 Ibid., 556. (1882.) See also the 1911 Pacific Sealing Convention, ibid., 3me Sér., 720.
7 Ibid., 2me Sér., XIV, 540. (1887.)
8 E.g., The 1883 Danube Convention, supra.
9 E.g., U. S.—Mexican Smuggling Convention, Dec. 23, 1925, DeMartens, Nouveau Recueil, 3me Sér., XVIII, 266.
10 See Egger, op. cit., Cicero, De Officiis I, II; D. J. Hill, History of European Diplomacy in the International Development of Europe, 8–11, and A. Weiss Le Droit Fétial et les Féliaux sous la République Romaine, for descriptions of oath procedure in regard to treaties in ancient times. Elaborate oath-taking formalities accompanied the making of treaties in the 15th, 16th and 17th centuries, e.g., the treaty between Spain and Prance, April 3, 1559, Dumont, J., Corps Universel Diplomatique du Droit des Gens, V, 34, but in the 18th century the practice declined rapidly, though a 20th century example is found in Art. 3 of the treaty between Italy and the Mullah of the Somalis, March 5, 1905, DeMartens, Nouveau Recueil Général, VI, 314. Invocation to the deity is found in one of the earliest treaties on record, that between Egypt and the Prince of Cheta, about 1800 B.C., Egger, op. cit., 243, and was used in a vast number of international agreements down to and including the Anti-Slavery Convention of 1890, DeMartens, Nouveau Recueil Général, 2me Sér., XVI, 3, and the Italo-Abyssinian treaty of Oct. 26, 1896, ibid., X, 414.
11 The last time hostages were employed between great Powers was in connection with the Aix-la-Chapelle Treaty, Oct. 18, 1748, between Great Britain, France and the Netherlands. DeKoch, C. W., Hùtmre Abrège des Traités de Paix, 1648–1816, II, 420. A final use of hostages was made in a treaty in 1764 between Great Britain and the Seneca Nation of Indians, DeMartens, Recueil, I, 220.
12 Where this sanction was used, one of the signatories swore that if he violated the terms, his subjects were to be released from their obligations to him and were to assist the injured party. E.g., France and Flanders, April, 1225, Dumont, op. dt., I, 1, 163.
13 E.g., see Art. 3 of the treaty between Great Britain and Nicaragua, March 7, 1848. “The government of Nicaragua solemnly promises not to disturb the peace of the inhabitants of San Juan, knowing that such an act will be considered by Great Britain as a declaration of war,” DeMartens, Nouveau Recueil, XV, 177; see also the measures allowed the Allied and Associated Powers in Part VIII, Sec. I, Annex II, paragraphs 17 and 18 of the Treaty of Versailles, ibid., Nouveau Recueil Général, 3me Sér., II, 323. See also Art. 3 of Hague Convention XIII, 1907, and Art. VII, sec. 2 of the Radiotelegraph Convention, 3 Nov. 1906, ibid., III, 147.
14 E.g., Art. XXXVI of the Peace of Nimeguen, Sept. 17, 1678, “If anything should be wanting in the observance of this treaty, it shall not cause a breach, but reparation shall be made for the contravention,” Horsley, op. cit., 188; Art. 3 of Hague Convention IV, 1907, “A belligerent party which violates the provisions of the said regulations shall, if the case demands, be liable to pay compensation”; in one treaty a definite sum, payable in the event of a breach, is stipulated; treaty of May 8, 1625, between France and Great Britain, Dumont, op. cit., V, II, 476, where the amount of reparation is fixed at “400,000 écus.” One can only aek “How to collect?” If a party feels in a position to violate a treaty in the first place, it is not apt to render up gratuitous reparation; it probably would have to be coerced into performing as it had promised.
15 E.g., treaty between the Count of Flanders and the Count of Holland, March, 1167, Dumont, op. cit., 1, 1, 87 “Lequel contre venant à cette paix fourfera toute la terre qu’il tient en fief de la Conte de Flandre sans autre solenniteté de loy et n’en jouira jusques à ce qu’il aurait le tout réparé.” A sanction of this sort is to be distinguished from that involving a pledging or hypothecation of property; in the latter, property is held as a pledge against violation and pending fulfillment, but here forfeiture is to be made after violation occurs, a very different proposition.
16 Phillimore, R., Commentaries upon International Law, II, 83.
17 Rivier, A., Principes du Droit des Gens, I, 257. See also Pradier-Fodéré, P., Traiti de Droit International Public, 1885, II, 1165; Phülipson, C., Termination of War and Treaties of Peace, 209–213.
18 Poland at one time is reputed to have pledged the diamonds of the royal crown to Prussia as a security for treaty performance. Vattel, The Law of Nations (trans, by Ingraham, 1876) II, XVI, 241.
19 E.g., Geneva in treaties of 1756, 1764, and 1768 made over Corsica to Prance as a security, Phillipson, op. cit., 208.
20 Ibid., 209.
21 Art. 429.
22 Art. 430.
23 The Protocol at Spa, July 16, 1920, DeMartens,. Nouveau Recueil Général, XIII, 618, also provided that, “If by Sept. 1, 1920 the executive and legislative measures have not been taken… or if by October 1, 1920 the German army has not been reduced to the number of 150,000 men… the Allies will proceed to a further occupation of German territory.”
24 British Cmd. Papers, No. 3484, 28–30.
25 For general discussion, see Phillimore, op. cit., Chap. VII; Phillipson, op. cit., 209 et seq.; Nys, E., Le Droit International, 1912, 39 et seq.
26 E.g., treaty between the Armenians and Chaldeans guaranteed by Cyrus of Persia, 557 B.C. Barbeyrac, Histoire des Anciens Traités, I, 55.
27 E.g., treaty between Sweden and the Catholic States of Germany, guaranteed by the King of France, Jan. 29, 1632. Dumont, op. cit., VI, 1, 29.
28 See DeMartens, Nouveau Recueil, XVI, 2, 123.
29 E.g., Guatemalan guarantee of treaty between Costa Rica and the “Greater Republic of Central America” in 1898, DeMartens, Nouveau Recueil, 2me Sér., XXXII, 84.
30 Dumont, op. cit., VIII, 1, 551.
31 Horsley, op. cit., 366.
32 DeKoch, op. cit., 340.
33 Ibid., 320.
34 DeMartens, Nouveau Recueil Général, 3me Sér., XVI, 3. Great Britain, however, made special agreements with both France and Prussia in. 1870 by which the British would join in the conflict on the side opposing the party which might violate the Belgian neutrality treaty of 1839. Ibid., 2me Sér., XXX, 590–593.
35 E.g., Art. 30 of the peace treaty signed at Nimeguen between Spain and France, Sept. 17, 1678, simply said, “All princes that please may be guarantees of this treaty.” Horsley, op. cit., 191.
36 E.g., Art. 69 of the Treaty of St. Germain: “Austria agrees that every member of the League of Nations shall have the right to call the attention of the Council to any infraction… of any one of these obligations and that the Council shall proceed in such a way… as may seem appropriate… under the circumstances.” DeMartens, Nouveau Recueil Général, 3me Sér., XI, 691. See also the Minority Conventions between the Allies and Poland, Czechoslovakia, Yugoslavia, and Roumania, ibid., XIII, 504, 512 et seq.
37 DeMartens, Nouveau Recueil Général, 3me Ser., XVI, 7.
38 Ibid., 2 788.
39 Ibid., 773.
40 DeMartens, C., and DeCussy, Recueil Manuel et Pratique des Traités, VII, 511.
41 Czechoslovakia, DeMartens, Nouveau Recueil Général, 3me Sér., XIII, 470; Yugoslavia, ibid., XVIII, 347; Poland, ibid., 655.
42 E.g., Art. 26 of Treaty of Paris, Feb. 10, 1763, DeMartens, Recueil, I, 164, by which Great Britain France and Spain “guarantee generally and reciprocally all the stipulations of the present treaty.” Such a provision is very vague: does it mean that all parties will act together against possible outside interference? Does it mean that two will join against any one violator as among the signatories themselves? Perhaps both. Apparently, it amounts to nothing more, really, than a simple promise of observance.
43 E.g., Art. 7 of the Treaty of Paris, March 30, 1856, DeMartens, Cussy, op. cit., VII, 497; Four-Power Pacific Pact, Dec. 13, 1921, Art. I, para. 2, DeMartens, Nouveau Recueil Général, 3me Sér., III, 753.
44 E.g., Art. 70 of the Treaty of Münster, Oct. 24, 1648, Dumont, op. cit., III, 337; Art. 16 of the League of Nations Covenant, DeMartens, Nouveau Recueil Général, 3me Sér., XI, 323 Constitution of the International Labor Organization, Treaty of Versailles, Art. 409–420, ibid.
45 League of Nations Official Journal, Oct. 1921, special supplement, No. 6, 14–15: “… 4. It is the duty of each member of the League to decide for itself whether a breach of the Covenant has been committed.”
46 The pact makes a very clear distinction between measures to be taken as among contractants, on the one hand, and toward non-contractants on the other. Art. I, para. 2, provides that if controversy develops between signatories, the other contracting parties are to be invited to a joint conference, while Art. 2 states that “If the said rights are threatened by the aggressive action of any other Power, the high contracting parties shall communicate with one another fully and frankly in order to arrive at an understanding as to the most efficacious measures to be taken jointly or separately to meet the exigencies of the particular situation.” The true treaty sanction is found in connection with Art. 1; direct application of measures of coercion is not specified, but by implication it may be only one step away. Provisions for “consultation” are also found in Art. 21 of the Washington Naval Treaty of 1922, Malloy III, 3100; Art. 21 of the London Naval Treaty of 1930, Publications of the Dept. of State, Conference Series, No. 2; Art. 50 of the Draft Convention of the Preparatory Commission for the Disarmament Conference, League of Nations Doc. No. C. 687. M. 288. 1930. IX.
47 Official Journal, Council, 8th Year, No. 7, July, 1927, 834; report of the Secretary-General, entitled Legal Position Arising from the Enforcement in Time of Peace of the Measures of Economic Pressure Indicated in Article 16, particularly by a Maritime Blockade.
48 Shotwell, War as an Instrument of National Policy, 221–225.
49 Remarks of Senator Capper, Congressional Record, Vol. 71, No. 51, 3149.
50 Report released March 14, 1932.
51 “What Follows the Pact of Paris?,” International Conciliation Pamphlet No. 276, January, 1932.
52 Ibid.
53 Kent, Commentaries on American Law, 4th ed., 7, 175; Moore, Digest of International Law, V, 566.
54 Charlton v. Kelly, 229 U. S. 447.
55 See Hall, International Law, 7th ed. (Higgins), sec. 116; Reeves, , “The Prussian-American Treaties,” this Journal, 1917 (Vol. 11), 475.Google Scholar
56 E.g., Trade agreement between Great Britain and the U. S. S. R., 1921, DeMartens, Nouveau Recueil Général, 3me Sér., XVIII, 684: “…in the event of the infringement by either party at any time of the provisions of this agreement… the other party shall immediately be free from the obligations of this agreement.”
57 E.g., Art. 5 of the Clayton-Bulwer Treaty, DeMartens, Cussy, op. cit., V, 386, relative to the guarantee of the neutrality of the canal. The guarantee was conditional upon the observance of the treaty terms by both parties.
58 J. B. Scott, The Hague Conventions: No. IV, 1907, Art. 2 and Art. 27; No. VII, 1907, Art. 1; No. X, 1907, Art. 1; No. XI, 1907, Art. 3.
59 Ibid., “Art. 2. The existence of a state of war must be notified to the neutral Powers without delay, and shall not take effect in regard to them until after the receipt of a notification, which may, however, be given by telegraph….”
60 D. H. Miller, The Pact of Paris, Chaps. XVIII and XIX.
61 Shotwell, op. cit.
62 Korkunov, N., General Theory of Law (trans, by W. Hastings, 2nd ed.) 188; Austin, J., The Province of Jurisprudence Determined, 5th ed., 27 and 505–506.
63 E.g., Treaty of alliance of 1579 between certain cities and provinces of the Netherlands, Art. 23. Dumont, op. cit., V, I, 322.
64 DeMartens, Nouveau Recueil Général, 3me Sér., VI, 114.
65 Unity, Jan. 13, 1930.
66 New York Times, Jan. 8, 1932. A similar attitude was adopted by the Assembly of the League of Nations (New York Times, Mar. 11, 1932), in a resolution declaring “it incumbent upon members of the League of Nations not to recognize any situation, treaty or agreement which may be brought about by means contrary to the Covenant of the League of Nations or the Pact of Paris.”
67 League of Nations Official Journal, 1930, 78.
68 See Hudson,, “Registration of Treaties,” this Journal, Vol. 24 (1930), 752–757.Google Scholar
69 See introduction to Hudson, International Legislation, Carnegie Endowment for International Peace, 1931.
70 Ibid.
71 Malloy, Treaties, etc., III, 3120.
72 See statement of Secretary of State Stimson in regard to the Pact of Paris : “Its sole sanetion lies in the power of public opinion of the countries constituting substantially the entire civilized world, whose governments have joined in the covenant.” Press releases, Dept. of State, Feb. 20, 1930.
73 London Naval Conference, Conference Series, No. 3, Pub. No. 67, Dept. of State, 35.
74 The United States apparently has accepted the principle of having an international supervisory disarmament commission. Art. 52 of the Draft Treaty, Treaty Information Bulletin, Dept. of State, No. 16, Jan., 1931.
75 Art. 19. “The Assembly may from time to time advise the reconsideration by members of the League of treaties which have become inapplicable and the consideration of international conditions whose continuance might endanger the peace of the world.” The Assembly has interpreted the article in a very restricted fashion. Records of the First Assembly, Plenary Meetings, 580, 595. See Goellner, La Révision des Traités sous le Régime de la Société des Nations,” 1925.