CHAPTER VIII

TREATIES AND CONVENTIONS: EXECUTION, RATIFICATION,

INTERPRETATION

Power of a State to Make Contracts and Agreements. In its capacity as a body politic a state, as will presently be seen, has many of the attributes of a corporation, including the power to make contracts and agreements. Sovereign states, however, have the added power, not possessed by individuals or corporations, of entering into a class of contractual obligations called public treaties or conventions. Contracts, in the ordinary acceptation of that term, may be made by a state with private persons, whether citizens or aliens, or with public or private corporations, but these instruments are not treaties, nor are they, in all respects, the same as contracts between private persons or corporations.'

Purpose of Treaties. Treaties may therefore be defined as compacts or agreements, entered into by sovereign states for the purpose of increasing, modifying, or defining their mutual duties and obligations. To secure the observance of the generally accepted rules of international law, treaties are not necessary, certainly among Christian states. They become so only when states find it either necessary or expedient to amend or modify their existing obligations, to define usages that are

1 Klüber, § 141; Heffter, § 81; Dana's Wheaton, § 252; Vattel, liv. ii. ch. xii. §§ 152, 153; I De Martens, §§ 46, 47. "Public treaties can only be made by the superior powers, by sovereigns who contract in the name of the state. Thus conventions made between sovereigns respecting their own private affairs,

and those between a sovereign and a private person, are not public treaties."-Vattel, liv. ii. chap. xii. § 154.

Vattel, liv. ii. ch. xii. § 152; II Ferguson, § 130; I De Martens, § 47; Woolsey, § 101; I Twiss, §§ 224231; I Halleck, pp. 227-229.

not clear, to secure concerted action looking to the abandonment of unjust or oppressive practices, or to obtain general sanction in behalf of improved methods, or the general acceptance of desirable reforms.

The Right of Making Treaties. The right of making treaties is one of the essential attributes of sovereignty, and there can be no surer test of a semi-sovereign or dependent state than is deduced from the fact that its ability to enter into treaty relations has been abridged or destroyed. Dependent states, however, may retain the right, to a greater or less degree, depending upon the number and character of the sovereign rights which they have yielded, or of which they have been deprived. They frequently retain the right of making treaties of commerce and extradition, postal and customs conventions, and, in some cases, treaties of alliance and naturalization. The existence of such powers, however, would be inconsistent with any considerable degree of dependence on the part of the semi-sovereign state. In the German Confederation, as reorganized in 1815, a considerable degree of treaty-making power was reserved to the component states. The present German empire is a closer confederation, the imperial government having sole power to conclude treaties of peace or alliance, or treaties of any kind for political objects, commercial treaties, conventions regulating questions of domicile, emigration, and postal affairs, protection of copyright, and consular matters, extradition treaties, and other conventions connected with the administration of civil or criminal law.' The states of the American Union are forbidden to enter into treaties with foreign states; or to make agreements with other states of the Union, except with the consent of Congress.

Power of a State to Enter into Contracts with Individuals and Corporations. It has been seen that a state, in its capacity as a body politic, has many of the attributes of a corporation, including the power to make contracts and agreeWheaton, § 252; I Halleck, p. 227; II Phillimore, chap. vi.

Hall, p. 22; Hertslet, Map of Europe by Treaty, p. 1931; Dana's

ments. Contracts in the ordinary acceptation of the term may therefore be made by a state with private persons, whether citizens or aliens, or with public or private corporations. If the terms of such undertakings be not lived up to by the state, however, the individual who is wronged by such failure in respect to performance has not the same remedy that is applied where all the parties to the agreement are private persons— this, for the reason that sovereign states will not, as a rule, permit themselves to be sued in their own courts by private individuals, whether their own citizens or aliens. From the nature of the case the courts of the individual's state, he being an alien in respect to the government in default, are without jurisdiction to entertain a cause of action to which another sovereign state is a party. Permission to institute such suits is sometimes conferred upon courts endowed with jurisdiction for the purpose; but the existence of such a tribunal is not presumed in any state.' If the person wronged, however, be

'The United States by the establishment of the Court of Claims has given express statutory permission for suits to be brought against it; the cases in which such suits will lie being determined by the statute creating that tribunal.-Sections 1059 to 1093 Revised Statutes of the U. S. and the Acts of March 3, 1883(22 Statutes at Large, 485); March 3, 1887 (24 Ibid. 406); June 27, 1898, (30 Ibid.), and July 1, 1898 (Ibid.), amendatory thereof. In conformity to the principles of reciprocity this privilege is extended to aliens in the following cases: By the proceeding known as a "petition of right," the British Government accords to citizens of the United States the right to prosecute claims against it. Accordingly, British subjects, if otherwise entitled, may recover, by process in our Court of Claims, the proceeds of captured and abandoned property, a privilege granted only to the citizens or subjects of such foreign

governments as accord to our citizens the right to prosecute claims against such governments in their courts.—U. S. vs. O'Keefe, 11 Wallace, 178; Carlisle vs. U. S. 16 Ibid. 147. Under the laws of Prussia the fiscus represents the state, and any subject may sue the fiscus on contract before a court having like jurisdiction in actions between individuals. Judgment may be taken in such suit and execution issue. No discrimination is made against foreigners, save that they are required to give security for costs. Held, that an alien, a native of Hanover, which country had been incorporated into Prussia, was entitled to sue in the Court of Claims within the provisions of the act of July 27, 1868 (15 Stat. 243), which permitted the citizens or subjects of any government which accords to citizens of the United States the right to prosecute such claims in her courts, to recover the proceeds of captured or abandoned prop

an alien he may present his claim through the foreign office of the state of which he is a citizen or subject.

The Treaty-making Power. That authority in a state in whom the right of entering into treaty relations is vested is called the treaty-making power. In states having a monarchical form of government the treaty-making power is one of the prerogatives of the crown; in states having republican institutions it is exercised by the executive, either directly or subject to the approval of some branch of the legislative department of the government." This is the case in the United States. The constitution and laws of every state define the treatymaking power, and determine what restrictions, if any, are to be placed upon its exercise; and any agreements undertaken in excess of these limitations are unauthorized and void.'

erty.a - Brown's case, 5 Court of Claims Rep. 571. The Belgian Government, by its system of jurisprudence, holds the government amenable before the courts as an ordinary debtor, and accords to citizens of the United States the same right to prosecute claims against it in its courts as is accorded to individuals as between themselves. A subject of Belgium may, therefore, maintain a suit in the Court of Claims. De Give's case, 7 Ibid. 517. By the laws of Switzerland a private citizen may maintain a suit against the state in the federal tribunal, if the subject of litigation is of the value of 3000 francs. This right taken in connection with the provisions of the treaty of November 25, 1850, securing to citizens of the United States liberty to prosecute and defend their rights before courts of justice, as native born citizens, permits a citizen of Switzerland to maintain an action before the

The example of Prussia and other German states in subjecting the government to suits at the instance of private persons led to the establishment of the Court of Claims.-Brown's case, 5 Court of Claims Rep. 571.

Court of Claims.--Lobsiger's case, 5 Ibid. 687. In France a French subject may sue the government for real and personal property, and as American citizens are given the same privilege subject to the giving of security, French citizens may sue in the Court of Claims. Rothschild's case, 6 Ibid. 204; Dauphin's case, Ibid. 221.

Bluntschli, §§ 404, 404 bis; I Halleck, p. 229; Klüber, § 142; Heffter, §§ 82, 84; Dana's Wheaton, § 265; Vattel, liv. ii. ch. xii. § 154.

2 The United States Constitution provides (Art. 2, Sec. 2) that the President "shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the senators present concur." Consequently, when a treaty has been approved President for ratification. In Euin the Senate, it is sent to the rope treaties are usually made by the government save in cases enumerated in the constitution. Swiss treaties must be approved by Parliament. In England, and generally on the Continent, the national legislature is more frequently consulted than formerly.

Nature and Extent. In the exercise of its treaty-making power, a state may acquire or dispose of territory, recognize the independence of new states, create servitudes, enter into alliances, or confer special privileges upon certain classes of aliens with respect to trade, residence, or occupation within its territories; it may also rectify boundaries, guarantee the territorial integrity of other states, provide for the neutrality of straits, ship-canals, and navigable rivers, and do any other acts not inconsistent with its sovereignty. The right of a state to make contracts and agreements with individuals is subject, however, to the implied limitation that real property cannot be acquired by one state within the territorial limits of another, without the consent of such state shall first have been obtained by treaty stipulation. This for the reason that the occupation and possession of such lands would necessitate an exercise of sovereignty within the territory of the state within which such lands are situated.'

Conditions Essential to the Validity of Treaties. To the validity of a treaty it is essential: Ist. That the contracting parties should possess the power to enter into treaty engagements. 2d. The formal consent of the parties must be given, and this consent must be mutual, reciprocal, and free.' 3d. The subject of stipulation must not be opposed to morality and justice.

(a.) Power of the Contracting Parties. States which are parties to a proposed agreement must possess full treaty-making power as to its subject-matter. Dependent states cannot enter into agreements which are not authorized by their de

'Bluntschli, §§ 404-408; I Halleck, p. 227; Klüber, § 146; I De Martens, § 56; Lawrence, § 152; II Phillimore, chap. vi.

The United States Government cannot purchase a grant of land in, or concession of a right of way over, the territories of another nation as could an individual or private corporation, since, by the law of nations, one government cannot

enter upon the territories of another or claim any right whatever therein.-The Chiriqui Improvement Company, IX Opin. Att.-Gen. p. 286, Black (1859).

'For the exceptional case of treaties of peace, in which the action of one party is always constrained, see paragraph b, post, and the article so entitled in the chapter relating to the laws of war.