Treaties

TREATIES. A treaty is a contract between two or more States. The word is derived, through the French traite (Fr.

traiter,

to negotiate) from the Latin tractatus, the term which from the end of the 17th century began to be used in diplomacy instead of the older technical terms conventio publics and foedus.

According to modern diplomatic usage the term "treaty" is con fined to the more important international agreements, those of lesser or subordinate importance being embodied in "con ventions." There is, however, no difference in structure between a treaty and a convention, and for the purposes of this article they may be treated as the same thing.

Form.—In making a treaty it is not essential to employ any special form, and it need not on the face of it even appear to be a contract, but may take the form of a joint declaration or of an exchange of notes (as in the case of the "gentlemanly agree ment" between Great Britain and the United States, in 1818, for mutual disarmament on the Great Lakes). It is, however, customary to draw up all important treaties on a fixed plan. First comes the preamble, giving the names and styles of the high contracting parties, a statement of the general objects which they have in view, the names and official designations of the pleni potentiaries charged with the negotiation, and a statement that their full powers have been verified. Then follow the articles containing the stipulations agreed upon. If the treaty is con cluded for a definite period, this is next stated or, if it be in form perpetual, there may be a provision inserted that either party may "denounce" (i.e., give notice to terminate) the treaty. Next follows an article providing for ratification and for the time and place for the exchange of ratifications. At the end is a clause stating that "in witness whereof (en foi de quoi) the respective plenipotentiaries have affixed their names and seals." The signa tures follow, with the place and date.

Nearly all conventions likewise begin with a preamble, and in all other respects are similar to treaties. To both treaties and con ventions "Additional Articles" are often appended and signed by the plenipotentiaries, with the declaration that they have the same force and value as if they had been included in the body of the treaty or convention.

Classification of

Treaties.—International jurists have classi fied treaties on a variety of principles. For instance, a distinction has been drawn between those which represent a definite transac tion such as a cession of territory (Rechtsgeschiift) and those which seek to establish a general rule of conduct, such as the "renunciation of war" (Rechtssatz). They may be classified in a more practical way according to their object, as follows: I) po litical, such as treaties of peace, of alliance, of cession of terri tory, for arbitration, etc. ; 2) commercial, including consular

and fishery conventions, and slave trade and navigation treaties; 3) social, such as the conventions establishing the international telegraphic union (1865), the universal postal union the international bureau of weights and measures (1875) and the railway traffic union (1890) ; 4) relating to criminal justice, e.g., extradition (q.v.) ; 5) relating to civil justice, e.g., the protection of trade-marks (Paris, 1883) and copyright (Bern, 1886), the execution of the judgments of foreign courts, etc. ; 6) treaties embodying rules of international law hitherto observed, if at all, only by custom, such as methods for the peaceful settlement of international disputes (Hague Convention, 1899) or the humane conduct of war (Geneva Conventions, 1864 and 1906). In prac tice, however, it is of course often impossible to assign a particu lar treaty to any one of these classes.

Requisites.-1) A treaty, like a contract in private law, is only valid when made between competent parties, i.e., sovereign states. This rule still holds good, though since the World War the issue has been somewhat obscured by the rather loose use of the words "sovereign" and "treaty." Thus the Articles of Agreement between the British Government and the "representa tives of Southern Ireland" are commonly spoken of as the "treaty," and this has been in some quarters taken as implying the recognition of the sovereignty of the Irish Republic. The "sover eignty" now admitted in the British dominions is, however, so far as external relations are concerned, limited by agreement. The dominions are, in fact, what is known as "semi-sovereign," since they can only conclude conventions with foreign States on mat ters within their own competence. Moreover, this apparent de parture from the accepted rule is more apparent than real, since the sovereign power is still theoretically vested in the king, in whose name all such conventions are executed. The question where the treaty-making power resides in each State is answered by the municipal law in that State. In Great Britain it resides in the executive. In the United States treaties are negotiated by the President and the State Department, but can only be concluded "with the advice and consent of the Senate," and in practice the Senate shows itself very jealous of its right to amend treaties be fore ratification. In many countries, on the other hand, the treaty making power is shared between the executive and the legislature only for certain purposes; in France, e.g., treaties of peace, treaties of commerce, those involving financial obligations or relating to the rights of French citizens in foreign countries are not valid until ratified by a majority in both chambers.