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The Names and Scope of Treaties

Published online by Cambridge University Press:  28 March 2017

Denys P. Myers
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Extract

All writers commencing with Grotius say that the names of instruments embraced in the genus treaty have little, if any, legal significance. All who mention the matter say that some instruments are more important in international relations than others, and that “treaty” or “convention” is at the top of the list of some three dozen words that are used to describe such instruments. All agree that treaties generically have the characteristic of legally recording what the parties have agreed to, and, beyond that, all hedge on completing a definition. Few writers attempt to draw a line between treaties and legal obligations that are not treaties. In one way or another writers are accustomed to say that names are assigned to treaties idiosyncratically, at the whim of the draftsmen or by chance.

Type
Research Article
Information
American Journal of International Law , Volume 51 , Issue 3 , July 1957 , pp. 574 - 605
Copyright
Copyright © American Society of International Law 1957

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References

1 The three Eeports of the U.N. International Law Commission on the Law of Treaties are typical. James L. Brierly (Doc. A/CN.4/23) speaks of the infelicity of “the extreme variety of modern nomenclature.” Sir Hersch Lauterpacht (Doc. A/CN.4/63, p. 47) says that “in most cases there is no apparent reason for the variation in the terms used.” Sir Gerald G. Fitzmaurice (Doc. A/CN.4/101, p. 43) says “the designation is irrelevant.”

In their report to the League of Nations Committee of Experts for the Progressive Codification of International Law, A. Mastny and Simon Rundstein wrote:

“In practice, little attention is paid to the exact meaning which should be given to terms customarily used.

“The choice of nomenclature and form is governed by arbitrary considerations and depends upon the nature of the relations between States, the customs of the respective chancelleries and sometimes even the carelessness of those who draft diplomatic instruments.” 20 A.J.I.L. Spec. Supp. 215 (1926).Google Scholar

2 The Fitzmaurice draft of March 14, 1956 (Doc. A/CN.4/101) is cast in the form of a code, more detailed than the two preceding reports. Sir Hersch Lauterpacht’s 1953 and 1954 reports (Docs. A/CN.4/63 and 87) and the late James L. Brierly’s 1950 and 1951 reports (Docs. A/CN.4/23 and 43), which were discussed at the 84th to 88th meetings of the Commission and emerged in 1951 as a provisional text (Doc. A/CN.4/L.28), embody the same attributes differently expressed. The 1956 draft is very like Art. 1 of the Harvard Research Law of Treaties, 29 A.J.I.L. Supp. 657, 686–698 (1935).

3 However, Art. 2 (2) specifies that such an agreement “intended to serve the same purpose … may be embodied … in more than one instrument, such as an exchange of notes, letters or memoranda.” Lauterpacht and Brierly agree, but the Harvard Research did not include exchanges of notes because they did not conform to its procedural rules.

4 “Formal” signifies a written instrument. Art. 1 (1) of the code excludes “agreements not in written form, the validity of which is not, however, on that account to be regarded as prejudiced.” Lauterpacht and the Harvard Research tend to regard them as treaties.

5 “Entities” includes states as defined in Art. 3 to comprise governments acting through another state and international organizations covered by the I.C.J, judgment in the Injuries to United Nations Servants Case, 1949 I.C.J. Rep. 174, 178–180. Previous drafts were in agreement.

6 Art. 9 (1) provides: “Treaty-making and all other acts connected with treaties are, on the international plane, executive acts, and the function of the executive authority.” The international organization exercises these powers as decided upon by its competent organs acting within the constitutional limits of their functions. Previous drafts accept this attribute implicitly, rather than explicitly.

7 None of these representatives of the state can negotiate, sign or otherwise participate in making a treaty without executive powers. The exchange of “full powers, found in good and due form,” is noted in treaties, conventions and some agreements, but the existence of “powers” is not disproved because growing informality fails to record them. Ministers of foreign affairs possess the powers ex officio, ambassadors and ministers can make many instruments by virtue of their general powers and credentials, supplemented by instructions. Other agents are given powers ad hoc in case of need. Proper powers and authority to bring a treaty into force are factors in what Fitzmaurice calls conditions of formal validity. Report, Doc. A/CN.4/101, Arts. 10, 11.

8 Summarized from Manley O. Hudson, International Legislation, 1864–1914, from the list, Vol. 1, xix–xxxvi; 1920–45, from the contents titles. Subsidiary documents are included in the analysis.

9 The 1778–1909 record analyzes the bilateral contents of William M. Malloy, Treaties, Conventions, International Acts, Protocols and Agreements between the United States of America and other Powers. The 1950–52 record analyzes the contents of the five parts of the first three volumes of United States Treaties and Other International Agreements (hereafter cited as U. S. Treaties) in order to show the character of a state’s current activity, though almost all items were also registered for the United Nations Treaty Series (hereafter cited as U.N. Treaty Series).

10 The analysis covers 151 volumes, deposits through 1952, or 2484 items, of which 2005 were registered and 479 filed and recorded. Only principal documents have been brought to record. These statistics do not take account of protocols printed with the master paper, secondary exchanges of notes assembled under a single registration number, or other instruments which, though divisible as obligations, are handled as a unit. The General Agreement on Tariffs and Trade (55–64, 142–146 U.N. Treaty Series), for instance, is treated as a single item.

11 Agreement is the protean word in treaty nomenclature. Titles have been accepted as printed, though it is obvious that many of the names infrequently used may be preceded or followed by the term agreement, which strictly identifies a single document.

12 The United States titles its documents “agreement effected by exchange of notes,” while the United Nations Secretariat reverses the words as “exchange of notes constituting an agreement.” Many United States “agreements” are thus registered as exchanges of notes.

13 Protocols to multilateral instruments are shown in the first two columns, but not in the U.N. Treaty Series unless they were separately entered.

14 Regulations and rules adopted by the Universal Postal Union, the International Telecommunication Union and such bodies are not separately recorded in the U.N. Treaty Series statistics.

15 Most treatises on international law touch on treaty nomenclature. Extensive consideration to it is given in Sir Ernest Satow, Guide to Diplomatic Practice (3d ed., 1932), Ch. 28; Raoül Genet, Traité de diplomatie et de droit diplomatique, secs. 1374–1554 (1932); Harvard Research in International Law, Law of Treaties, Art. 4, commentary, 29 A.J.I.L. Supp. 710–722 (1935).

16 The funding agreements of 1923–28 were negotiated by the World War Foreign Debt Commission, signed by the Secretary of the Treasury and approved as Acts of Congress (44 Stat. 1325; 44 Stat. 329, 376, 385; 45 Stat. 399, 1176; 46 Stat. 48), full powers being issued to the Secretary of the Treasury, the transactions otherwise being of an interdepartmental nature between governments. The Declaration by United Nations, Jan. 1, 1942, the alliance of the second World War, was an executive agreement of the President as far as the United States was concerned, Executive Agreement Series, No. 236 (hereafter cited as Exec. Agr. Ser.).

17 Concordats between the Holy See and Roman Catholic states are not discussed here; de la Brière, Yves M.L., “Le Droit concordataire dans la nouvelle Europe,” 63 Hague Academy Recueil des Cours 371 (1938).Google Scholar

18 Mandates were especially named as instruments under Art. 22 of the Covenant of the League of Nations.

19 76 U.N. Treaty Series 193–237; Exec. Agr. Ser., No. 455.

20 84 U.N. Treaty Series 59–199; Treaties and Other International Acts Series (hereafter cited as T.I.A.S.), No. 1928.

21 4 U.N. Treaty Series 2–99.

22 Histoire des anciens traitez, pp. xi–xii. The word “treaty” was used in the Rolls of Parliament as early as 1427. It described the negotiations rather than the final document. The inconclusive negotiations of Parliament with Charles I in 1648, a few months before his execution, are known as the “treaty of Newport.”

23 The differences are without significance, simply reflecting current organization of the state. The Treaty of Westphalia between Spain and The Netherlands, Münster, Jan. 30, 1648, was concluded between the “king of Spain and the States General of the United Provinces.” The Final Act of the Congress of Vienna, June 9, 1815, was in the name of “the Powers” which signed the Treaty of Paris, May 30, 1814. The Treaty of Peace with Germany, Versailles, June 28, 1919, was in the name of the states only, designated as “Powers.” The Treaty for Renunciation of War, Paris, April 27, 1928, was in the name of heads of state, including the Emperor of Japan; the renunciation was “in the name of the respective peoples,” which required a reservational explanation to uphold the Emperor’s prerogative. A somewhat similar difficulty occurred at San Francisco, where the preamble of the Charter began: “We, the peoples of the United Nations.” On the insistence of The Netherlands, whose Queen as head of state was the contractant, the enacting clause was completed: “Accordingly, our respective Governments … have agreed …” These fashions change with the times. The Imperial Conference of 1926 recommended that “all treaties … should be made in the name of Heads of States” and “in the name of the king as the symbol of the special relationship,” if members of the British Commonwealth were parties; but political evolution leaves only the second condition pertinent in the present Commonwealth.

24 The Solemn League and Covenant of 1643 is the reputed source of the word. However, the old Testament covenants (Exodus 24:7, Deuteronomy 29:1 and Joshua 24:25) are suggestive prototypes.

25 In Grotian Latin it meant agreement.

26 Traité de diplomatie, Vol. III, p. 523: “Le pacte baigne dans un océan de sentiments supraterreatres résolument placeś au dessus des habitudes diplomatiques interétatiques et appartenant par leur transcendance voulue on espéré, au promesses séraphiques.”

27 De Clercq, Recueil des Traités de la France, Vol. 1, p. 81.

28 Feodor F. Martens, Recueil des Traités de la Russie, Vol. IV, p. 1; 3 British and Foreign State Papers (hereafter cited as Brit, and For. State Papers), p. 211. The text calls the instrument an “act.”

29 54 League of Nations Treaty Series (hereafter cited as L. N. Treaty Series) 289. The whole transaction consisted of a final act, a letter to Germany, a treaty of guaranty, two treaties and two conventions.

30 For such pacts, some of which are based on the “Pact of Paris,” see 26 League of Nations Treaty Series 22; 60 ibid. 19; 67 ibid. 394; 78 ibid. 414; 108 ibid. 188, 202; 139 ibid. 223; 153 ibid. 153; 156 ibid. 165. The Treaty for Renunciation of War, in force July 24, 1929, is cited as the “Pact of Paris” in various League resolutions; it is printed at 94 ibid. 57.

31 70 U.N. Treaty Series 237.

32 Also Constitution of the International Rice Commission, 120 ibid. 13.

33 Postwar Foreign Policy Preparation, 1939–1945, pp. 176, 526 (State Dept. Pub. 3580).

34 Sieur Du Cange, Glossarium mediae et infimae Latinitatis (1657), in addition to defining charta as a grant from highest authority, adds that it enables the grantee to demonstrate his legal right thereto.

35 119 U.N. Treaty Series 3.

36 For instance, the Charter of the International Agricultural Mortgage Company, May 21, 1931, 5 Hudson, International Legislation 973; and the Charter of the Allied High Commission for Germany, June 20, 1949, 122 U.N. Treaty Series 3. The Charter of the International Trade Organization is not in force. Charters (Fr., statuts) defined the functions of the International Military Tribunals for Germany and the Far East (Exec. Agr. Ser., No. 472; Far Eastern Series, No. 12; 82 U.N. Treaty Series 284). The Pacific Charter, Sept. 8, 1954 (T.I.A.S., No. 3171) is a Southeast Asia defense document.

37 As an annex to the Declaration by United Nations, Jan. 1, 1942, 204 U.N. Treaty Series 381. It so appears in Exec. Agr. Ser., No. 236, but the Declaration was a response to the Axis Pact of Assistance, Sept. 27, 1940, which was also annexed to the Declaration by the United Kingdom in its registration with the League of Nations.

38 55 Brit, and For. State Papers 93.

39 26 L.N. Treaty Series 173.

40 Statutes on the régime of navigable waterways of international concern, 7 L.N. Treaty Series 35; on the international régime of railways, 47 ibid. 55; on an international mortgage credit company, 1931 Official Joural 1428; establishing an International Relief Union, 135 L.N. Treaty Series 247. A modification of the practice, where national legislation was required, was to annex a “uniform law” to a convention, as in the case of bills of exchange, promissory notes and checks, 143 ibid. 257, 335.

41 Organic statutes established the Organization for Communications and Transit, the International Institute of Intellectual Co-operation, the International Institute for the Unification of Private Law, the International Educational Cinematographic Institute, the International Center for Leprosy Research, and the Nansen International Refugees Office. Denys P. Myers, Handbook of the League of Nations 57, 66–68, 71 (1935).

42 29 L.N. Treaty Series 95.

43 2 Hudson, International Legislation 1242, 1891. The statutes of the Council of Europe, May 5, 1949, and of the Hague Conference on Private International Law, Oct. 31, 1951 (87 U.N. Treaty Series 103 and reg. No. 2997), are postwar examples of use of the word.

44 2 Hunter Miller, Treaties and Other International Acts of the United States 163, 188, who correctly rules that it is a treaty “in the strictest sense of the word.” The use of both terms seems to have been due to uncertainty as to what extent the Treaty of Friendship, Boundaries, Commerce and Navigation of Oct. 27, 1795, with Spain applied in succession to the newly independent states of South America. “Treaty” implied it did not; “general convention” implied it might and that this instrument might complement existing rights and obligations. The same language was used in treaties with the Central American Federation, Dec. 5, 1825; Brazil, Dec. 12, 1828; Chile, May 16, 1832; and Peru-Bolivian Confederation, Nov. 30, 1836, 3 ibid. 209, 451, 671, and 4 ibid. 71. Venezuela was included in the Republic of Colombia in 1824, but after it was separately recognized in 1835 signed the same text with the United States under the name of treaty on Jan. 20, 1836, 4 ibid. 3.

45 Carlos Calvo says a convention is an engagement “applying to a single clearly determined object.” Le Droit International théorique et pratique, Vol. I, p. 689 (2d ed., 1870).Google Scholar

46 English usage avoids applying the nomenclature of municipal law contracts to the treaty structure.

47 Treaties, Conventions, International Acts, Protocols and Agreements between the United States of America and other Powers, 1776–1909, 2 vols., compiled by William M. Malloy, continued by volumes issued in 1923 (Redmond) and 1938 (Trenwith); cited as Treaties, Conventions, etc.

48 The United States having declined to become a party to the convention of the International Copyright Union, Sept. 9, 1886 (72 Brit, and For. State Papers 22), invented a protective system of its own. The Act of March 3, 1891, denied to citizens of foreign states the benefit of American copyright unless the law of the foreign state “permits to citizens of the United States the benefit of copyright on substantially the same basis” as to its citizens. This reciprocal condition was determined by Presidential proclamations. See Treaties in Force, 1956, pp. 243–250 (State Dept. Pub. 6427).

49 Published in Statutes at Large, Vols. 47–64, with a complete list by countries of Treaty Series and Executive Agreement Series, Vol. 64, pp. B1107–1182.

50 2 Malloy, op. cit. 2157; 99 Brit, and For. State Papers 141.

51 Exec. Agr. Ser., No. 199; Treaty Series, No. 977.

52 T.I.A.S., No. 1543.

53 Preamble and Art. 119 quoted, 2 Brit, and For. State Papers 3. The parties were Austria, France, Great Britain, Portugal, Prussia, Russia, Spain (by accession) and Sweden.

54 76 Brit, and For. State Papers 4; 3 A.J.I.L. Supp. 7 (1909).

55 81 Brit, and For. State Papers 1058.

56 82 ibid 55; 3 A.J.I.L. Supp. 29 (1909).

57 71 U.N. Treaty Series 101.

58 88 Brit, and For. State Papers 36; 92 ibid. 807, and 106 ibid. 848; 192 L.N. Treaty Series 17.

59 See the keen analysis of the legal value of decisions taken at a transitional stage, in Briggs, Herbert W., “The Final Act of the London Conference on Germany,” 49 A.J.I.L. 148–165 (1955)Google Scholar ; use of the term is reviewed at pp. 149–152. The London decisions were put into formal instruments at Paris, Oct. 23, 1954, T.I.A.S., No. 3425.

60 The Final Act, 9 U.N. Treaty Series 3; T.I.A.S., No. 1561; the Constitution, 14 U.N. Treaty Series 185; T.I.A.S., No. 1808.

61 75 U.N. Treaty Series 5; the Final Act precedes the conventions registered as Nos. 970–973.

62 142 U.N. Treaty Series 3.

63 Those on declaration of death of missing persons, April 6, 1950, and road and motor transport, Sept. 19, 1949 (119 U.N. Treaty Series 99, and 125 ibid. 3), may be studied in this connection.

64 Derived from Sieur Du Cange, Glossarium mediae et infimae Latinitatis (1657). Du Cange cites Justinian’s Novella 40 to show that the protocollum was evidence of the good faith of the documents it listed, and a Sicilian quotation of 1352 that a protocolized document was a certified one. It was not a depository in which acts were kept nor a collection of rejected or falsified documents. In 1304 in France the protocollum was synonymous with the chartulary or register of documents.

65 Wenger, Leopold, Institutes of the Roman Law of Civil Procedure, translated by Fisk, Otis H. (New York, Veritas Press, 1940), pp. 300–301 Google Scholar; Niedermeyer, Hans, Über antike Protokoll-Literatur (Göttingen, 1918)Google Scholar, dealing with proceedings against St. Cyprian.

66 The protocol concerning mediation before war, April 14, 1756, and the one concerning inviolability of treaties, Jan. 17, 1871, 46 Brit, and For. State Papers 63, and 61 ibid. 1193.

A recent use in this sense was made at the Crimean (Yalta) and Potsdam Conferences of heads of state, Feb. 4–11, 1945, and July 17–Aug. 1, 1945, on which “protocols of proceedings” were issued, including texts of some decisions as well as summaries of other conclusions. The contents of these “protocols” varied from firm decisions to be implemented later, statements of consensus of policy, to outlines of future plans. It is a highly technical task to determine what parts of them should be regarded as immediately binding engagements and what parts are only contingent and transitional conclusions of policy-makers. The answer in great part is to be found by tracing the subsequent treatment of specific points.

67 2 Treaties, Conventions, etc., 2006; Foreign Relations, 1901, Appendix.

68 League of Nations, Records of the 5th Assembly, 3d Committee, p. 212 (Official Journal, Spec. Supp. No. 26). The protocol did not come into force.

69 27 Brit, and For. State Papers 1000.

70 2 Malloy, Treaties, Conventions, etc. 1576.

71 57 Brit, and For. State Papers 32; 3 A.J.I.L. Supp. 118 (1909).

72 91 Brit, and For. Papers 1011, 1014, 1017.

73 46 Brit, and For. State Papers 26. By 1907 all states except the United States, Bolivia, Uruguay and Venezuela had accepted it. The United States assented to its application later; for its initial position, see 5 Moore, Digest of International Law 195.

74 Malloy, Treaties, Conventions, etc., Supp. 1913, p. 266 (Sen. Doc. 1063, 62d Cong., 3d Sess.; Cong. Vol. 6350); Foreign Relations, 1909, p. 318.

75 204 L.N. Treaty Series 386, where the Axis Pact is printed as an annex in a text registered by the United Kingdom that was surely not certified as an official original.

76 3 U.N. Treaty Series 123.

77 8 Hudson, International Legislation 267.

78 The declaration on problems of common interest by the presidents in connection with the American-French lend-lease settlement, May 28, 1946 (84 U.N. Treaty Series 59; T.I.A.S., No. 1928), and the joint policy declaration concerning the Korean Armistice, July 27, 1953, by the governments of the participating United Nations Members (4 U. S. Treaties 230; T.I.A.S., No. 2781) illustrate the two types.

79 The Department of State uses a title “agreement effected by exchange of notes,” which item is certified to the United Nations Secretariat as an “exchange of notes … constituting an agreement,” each note being separately certified, and the latter title is used in the Treaty Series.

80 Arthur J. Balfour, in a draft which he first called a treaty, substituted “arrangement” so as to be “deliberately vague” concerning the significance of his proposal, which was to find a satisfactory way to abrogate and supersede the Anglo-Japanese alliance of July 13, 1911, at the Washington Conference of 1921–1922. Foreign Relations, 1922, Vol. II, p. 2.

81 Exchanges of notes in these days are often made by departmental heads or agents outside of the foreign office, but still officials of the executive branch of government. Since none of them do—or ought to—act without powers issued either by the head of state or the minister for foreign affairs, the distinction of international “interdepartmental” agreements now in use seems to be unnecessary. The term “intergovernmental” to distinguish between treaties between heads of state and those not so designated, for the same reason of the existence of adequate powers, likewise seems to be of doubtful utility.

82 Chile-Norway, April 30, July 27, 1923, 33 L.N. Treaty Series 249; Belgium and Great Britain, Money Orders, Feb. 18, 1925, 33 ibid. 341.

83 Sir Ernest Satow, A Guide to Diplomatic Practice 379 (3d ed.).

84 Much of the funds appropriated by the United States for economic co-operation, mutual security and technical assistance has been allocated by exchange of notes.

A property transfer and territorial assignment of large size were effected by the exchange of notes of Sept. 2, 1940, by which the United States turned over 50 destroyers to the United Kingdom for a series of bases in the Western Hemisphere, Exec. Agr. Ser., No. 181, 54 Stat. 2405; 203 L.N. Treaty Series 201; an agreement of March 27, 1941, implemented those notes, 55 Stat. 1560, Exec. Agr. Ser., No. 235, 204 L.N. Treaty Series 15; further, T.I.A.S., Nos. 1717, 1809, 1933, 1985, 2105.

85 The Rush-Bagot agreement of July 28/29, 1817, concerning naval vessels on the Great Lakes still lives and has vitally affected policy on a continent, 1 Malloy, Treaties, Conventions, etc. 628; revisionary exchanges of notes, 1939–46, T.I.A.S., No. 1836.

British establishment of diplomatic relations with the Soviet Union, Dec. 20/21, 1929, U. K. Treaty Series, No. 2 (1930), 99 L.N. Treaty Series 61; U. S. establishment of diplomatic relations with the Soviet Union, Nov. 16, 1933, European and British Commonwealth Series 2; British agreement with Germany on naval armament, June 18, 1935, U. K. Treaty Series, No. 22 (1935), 161 L.N. Treaty Series 9.

86 J. L. Weinstein, “Exchanges of Notes,” 29 British Year Book of International Law 205–226 (1952), comprehensively deals with the form, with full references to each aspect of the subject. He found 1,078 exchanges of notes in the 4834 instruments published in the 205 volumes of the League of Nations Treaty Series.

87 Weinstein (loc. cit. 222–223) examined 35 court cases, all of which “have treated exchanges of notes as being within the category of treaties.” Harvard Research in International Law, Law of Treaties, did not include exchanges of notes in its draft because its procedural provisions would not apply to them, but it asserted that “unquestionably, agreements concluded in this form have the juridical force and effect of treaties as the term is usually understood.” 29 A.J.I.L. Supp. 698 (1935).Google Scholar

88 See the series of notes with the Treaty of Friendship and Cooperation between Panama and the United States, March 2, 1936, Treaty Series, No. 945, 53 Stat. 1807. A more complex instance are the transactions of May 26, 1952, and Oct. 23, 1954, terminating the occupation regime in the Federal Republic of Germany, which carried 20 exchanges of notes, declarations, and understandings. U. S. Senate, Execs. L and M, 83d Cong., 2d Sess., pp. 93–169; T.I.A.S., No. 3425.

89 See the agreements effected by exchange of notes to bring agreements on economic co-operation into harmony with Public Law 47, 81st Cong. (1 U. S. Treaties 148–168, 181–187), with Denmark, France, Iceland, Ireland, Italy, Luxembourg, Norway, Sweden and the United Kingdom, T.I.A.S., Nos. 2022, 2023, 2026, 2027, 2028, 2030, 2032, 2034, 2036. Instruments amending, modifying or interpreting treaties that have been registered are customarily published in annexes to the League of Nations and United Nations Treaty Series under the registration number of the main instrument. This practice, especially with respect to multilateral conventions, provides a reliable means of determining the current status of the main instrument.

90 Publication of these documents in the annexes of the United Nations Treaty Series, however, tends to increase.

91 More than 100 declarations accepting compulsory jurisdiction have been made and registered in both League of Nations and United Nations Treaty Series.

92 United Nations Conference on International Organization, Documents, Vol. 13, p. 705; Selected Documents, p. 877 (State Dept. Pub. 2490).

93 The treaties of the Paris Peace Conference, 1919–20: Germany, Art. 289; Austria, Art. 241; Bulgaria, Art. 168; Hungary, Art. 224; the Paris treaties of Feb. 10, 1947: Bulgaria, Art. 8; Finland, Art. 12; Hungary, Art. 10; Italy, Art. 44; Rumania, Art. 40; Japan, Sept. 8, 1951, Art. 7.

Notes of acceptance have been registered: 5 L.N. Treaty Series 380; 26 U.N. Treaty Series 103–119; 29 ibid. 101; 48 ibid. 9; 67 ibid. 153, 157; 98 ibid. 21; 104 ibid. 25–118. The 1947 and 1951 treaties prescribe registration. Revivals are usually by name, with citation to the text. The United Kingdom in its notification to Italy (104 U.N. Treaty Series 41) printed, and so registered, the texts of 9 treaties dated 1873–1911.

94 The declaration is contained in the application and the applicant is a Member from the date of the General Assembly’s decision. In the United Nations Treaty Series the declarations are printed as follows: Afghanistan, Vol. 1, p. 39; Burma, 15 ibid. 3; Iceland, 1 ibid. 41; Indonesia, 71 ibid. 153; Israel, 35 ibid. 53; Pakistan, 8 ibid. 57; Sweden, 1 ibid. 43; Thailand, ibid. 47; Yemen, 8 ibid. 59; reg. nos. 3043–3055, 3155, 3727.

95 Switzerland, Liechtenstein, San Marino and Japan have deposited instruments accepting such resolutions. 7 U.N. Treaty Series 111; 51 ibid. 115; reg. nos. 2495 and 2524.

96 I.C.J. Yearbook, 1955–1956, p. 32. The general declarations of Cambodia, Ceylon, Finland, Italy and Laos were superseded by automatic accession to the Statute on their admission to the United Nations Dec. 14, 1955. Declarations continue for the Federal Republic of Germany, the Republic of Vietnam, and Japan, which was obligated to act by Art. 22 of the Treaty of Peace of Sept. 8, 1951, until it accepted the Statute April 2, 1954. The League of Nations resolution was adopted May 17, 1922.

97 Denys P. Myers, Handbook of the League of Nations, 1920–1935, p. 124.

98 The procès-verbaux, Nov. 17, 1937, modifying the Conventions on Transport of Passengers and Goods, 7 Hudson, International Legislation 893, 896; the procès-verbal with Switzerland on the legal status of the International Labor Organization after dissolution of the League of Nations, 15 U.N. Treaty Series 377; agreed minutes of the Mixed Commission of Norway and the Occupied Zones of Germany, Feb. 14–17, 1949, 30 ibid. 137.

99 See the modus vivendi, 1888–1907, between Great Britain and the United States on fisheries matters, 1 Malloy, Treaties 738, 743, 760, 805, 811, 833; interim arrangements, San Francisco, June 26, 1945, Exec. Agr. Ser., No. 461; modus vivendi, Belgium-Luxembourg Economic Union and Turkey, March 12, 1947, 37 U.N. Treaty Series 221.

100 3 Treaties, Conventions, etc. 3768; 11 L.N. Treaty Series 173.

101 4 Treaties, Conventions, etc. 5379; revised Oct. 2, 1947, T.I.A.S., No. 1901, and Dec. 22, 1952, ibid., No. 3266. The United States is a party to the General Radio (Treaty Series, No. 948) and Telegraph (1949 revision, T.I.A.S., No. 2175; 2 U. S. Treaties 17) Regulations. The regulations have not been registered.

The Congress of the World Meteorological Organization (Art. 7e) can adopt regulations covering meteorological practices and procedures. T.I.A.S., No. 2052; 1 U. S. Treaties 281.

102 T.I.A.S., No. 1808; 14 U.N. Treaty Series 185.

103 66 ibid. 25; the sanitary and quarantine regulations are also in force, reg. no. 2303.

104 1 Malloy, Treaties 1048.

105 Ibid. 483, 487.

106 An agreement for the lease of coaling stations from Cuba in February, 1903, preceded the formal lease in July (ibid. 358, 360). Between 1897 and 1915 some 16 instances of leased territory occurred. Institut Intermédiaire International, Répertoire général des traités, index Bail.

107 Malloy, Treaties 2042 and 2054; 2269 at 2287.

108 Levie, Howard S., “The Nature and Scope of the Armistice Agreement,” 50 A.J.I.L. 880–906 (1956)Google Scholar at 884, 901, and 906, where the provisions of the new Law of Land Warfare are cited.

109 68 U.N. Treaty Series 189; T.I.A.S., No. 1520. The Act of Military Surrender is Exec. Agr. Ser., No. 502.

110 Bulgarian and Hungarian armistice agreements and the Japanese instrument of surrender, 123 U.N. Treaty Series 223, 140 ibid. 397, 139 ibid. 387. Canada filed and recorded one protocol of the Finnish armistice and registered another, 45 U.N. Treaty Series 125, 311.

111 The armistice between Lithuania and Poland, Nov. 29, 1920, made under the auspices of the League of Nations Military Commission of Control, 9 L.N. Treaty Series 64. The four 1949 Armistices between Israel and Egypt, Lebanon, Jordan and Syria respectively, effected through United Nations mediation, were registered ex officio, 42 U.N. Treaty Series 251–327. The Korean Armistice of July 27, 1953, technically made between the Commander-in-Chief, United Nations Command, and the commanders of the “Korean People’s Army and the Chinese People’s Volunteers,” remains in U.N. Docs. S/3079 and A/2431.

112 Less definitely and confidently the Bame may be said of political decisions other than treaties.

113 Lauterpacht (Report, U.N. Doc. A/CN.4/87, p. 4) proposed that “in the absence of evidence to the contrary,” registered instruments should be deemed to create “legal rights and obligations.”

The Secretariat, in its monthly Statement of Treaties and International Agreements Registered or Filed and Recorded (ST/LEG/Ser.A/105), says it accepts the position of the Member State submitting an instrument “that so far as the party is concerned the instrument is a treaty or international agreement within the meaning of Art. 102.” Registration “does not imply a judgment by the Secretariat on the nature of the instrument, the status of the party, or any similar question.” The Secretariat understands “that its action does not confer on the instrument the status of a treaty or international agreement if it does not already have that status and does not confer on a party a status which it does not otherwise have.”

114 See use of “international acts” in United States volumes, under Act, above.

115 Art. 2 modified by Arts. 9 and 13, U.N. Doc. A/CN.4/101.

116 The subject, but not the phrasing, of the items is attributed to David Hunter Miller, Treaties and Other International Acts of the United States of America, Plan of the Edition, Vol. I, pp. 3–14; Harvard Research, Law of Treaties, loc. cit. 710–722; 5 Repertory of United Nations Practice, Art. 102, pars. 22–28.

117 A Convention on Pacific Sockeye Salmon Fisheries of Sept 2, 1919 (Foreign Relations, 1919, Vol. I, p. 229) failed; others of May 25, 1920, and March 27, 1929 (ibid. 1920, Vol. I, p. 387, and 1929, Vol. II, p. 55) were followed by the Convention with Canada of May 26, 1930, which went into force July 28, 1937, Treaty Series, No. 918; 50 Stat. 1355; 184 L.N. Treaty Series 305.

118 The Treaty of Peace with Germany, Versailles, June 28, 1919, went into force for all signatories except China, Ecuador, the Hedjaz and the United States.

119 In the Mavrommatis Jerusalem Concessions Case the Permanent Court of International Justice, asserting that there were precedents for the point, said that the parties had conducted their negotiations “on the basis of Protocol XII” since its signature, the applicant not being under “an immediate obligation to conform to these provisions.” Ser. A, No. 5, pp. 31, 32, 34, 35; 1 Hudson, “World Court Reports 316, 317, 319. The concession was examined under the provisions of the Palestine Mandate, July 24, 1922, as complemented by the Protocol, signed July 24, 1923 (28 L.N. Treaty Series 203), which was not in force during the negotiations.

120 This position existed in the League of Nations. Notes of Sept 10 and 15, 1920, between Belgium and France, which confirmed a military understanding of Sept. 7, were registered under Art. 18 of the Covenant, 2 L.N. Treaty Series 128. An agitation arose for registration of the military understanding, which was not presented. An Advisory Committee of Jurists proposed certain amendments to the Covenant, but they were not approved by the Assembly. The military understanding remained secret, subject to revision, which last occurred March 6, 1936. The United Kingdom on Feb. 26, 1921, informed the Secretary General that in its opinion certain financial agreements were not registrable as treaties (Official Journal, 1921, p. 224). Harvard Research, Law of Treaties, loc. cit. 913; Foreign Relations, The Paris Peace Conference, 1919, Vol. XIII, p. 138 (The Treaty of Versailles and After, State Dept. Publication 2724 or 2757).

121 Acts of Congress and Presidential proclamations in the United States have had the effect of establishing the equivalent of treaty relations in some fields where the Government was not ready to conclude treaties. An instance is the evolution of a British Order in Council, Jan. 9, 1863, on the “rules of the road at sea” into the regulations of the Conventions on Safety of Life at Sea, May 23, 1929, and June 10, 1948 (4 Treaties, Conventions, etc. 5134; 136 L.N. Treaty Series 81; T.I.A.S., No. 2495; 3 U. S. Treaties 3450; 164 U.N. Treaty Series 113; 1948 regulations, T.I.A.S., No. 2899, 4 U. S. Treaties 2956). The original rules were revised at two conferences in 1884 and 1889 and were made internationally effective for many years by national enactment. The United States enacted the Revised International Rules and Regulations for Preventing Collisions at Sea verbatim on March 3, 1885 (23 Stat. 438), but they were not concurrently in force between states until July 1, 1897 (29 Stat. 885), and were not put into treaty form until a generation later.

Presidential proclamations have declared a statute of Congress operative or not operative as to a particular country. Miller, op. cit. 139–156, gives a list of proclamations affecting foreign relations 1793–1931, and classifies them under 20 headings, ibid. 157–173. Several have become treaty subjects. Copyright, long handled by proclamation, is also covered by the Universal Copyright Convention (Treaties in Force, 1955, pp. 227–234). Ship loadlines (46 U.S.C. secs. 85d, 88d) are now subject of the convention of July 5, 1930, 135 L.N. Treaty Series 301; 4 Treaties, Conventions, etc. 5287, 5348. Reciprocal vessel inspection (46 U.S.C. sec. 362), tonnage dues (ibid. sec. 141) and tonnage measurement (ibid. sec. 81) are arranged both by national reciprocal action and by treaty.

122 Annexation of Texas to the United States was the object of a treaty signed April 12, 1844, which was rejected by the Senate and thus became an “unperfected treaty.” President Tyler recommended that its terms be adopted by an “act to be perfected and made binding on the two countries.” Congress on March 1, 1845, adopted a Joint Resolution calling for annexation and giving the President the option of doing it by treaty “or by articles to be submitted to the two Houses of Congress.” Texas responded by a Joint Resolution of its Congress and an Ordinance of a Convention, dated June 23 and July 4, 1845. President Polk in his message of Dec. 2, 1845, called these documents “the compact of their union,” and Congress by Joint Resolution on Dec. 29, 1845, admitted Texas as a State. 4 Miller, op. cit. 689–739.

123 An instance is the China “Open Door” correspondence in 1899–1900 by the United States with France, Germany, Great Britain, Italy, Japan and Russia. 1 Malloy, Treaties 244–260. This has much the appearance of exchanges of notes, varying in responsive identity. Secretary of State John Hay on March 26, 1900, informed the other states that he regarded the undertaking as final, but none confirmed that conclusion.

124 Neither ownership nor boundaries of territory can be determined solely by treaty instruments in some parts of the world or in all cases. It would be desirable if all boundaries were specifically described in formal treaties, but many of them rest on the evidence of assembled data not processed into an agreement. 1 Miller, op. cit. 9, refers to the Island of Navassa, site of a lighthouse, the ownership of which would require a monograph to record; citing the review of the documents in Jones v. U. S., 137 U. S. 202, 205, 217 (1890), he comments that the “form by which such acquisition is achieved is quite immaterial” and it “may be by an international agreement which is not in any” sense a treaty.

Reports of delimitation commissions set up under the terms of a treaty to define boundaries are not treated as part of the treaty, though their data may be incorporated in a subsequent treaty. See Alexander Marchant, Boundaries of the Latin American Republics 1493–1943 (State Dept. Pub. 2082).

125 The Island of Palmas Award (22 A.J.I.L. 867 (1928), 2 Int. Arb. Awards 829) is illustrative.

126 During the war of 1914–18 some states made Treasury loan agreements in precise amounts, but the United States extended lines of credit followed by funding agreements negotiated by the World War Foreign Debt Commission, which in no case was able to realize the conditions of the Act of Congress of Feb. 9, 1922 (42 Stat. 363). Each settlement, therefore, was separately approved by Congress as an amendment to that Act. The agreements were regarded as Treasury or statutory acts, though some other states (France, for instance, 100 L.N. Treaty Series 28) handled them as treaties. The “Hoover Moratorium” of 1932 was effected by interdepartmental agreements, U. S. Treasury, Report of the Secretary, 1932, pp. 290 ff.; Treaties in Force … 1941, pp. 175–180 (State Dept. Pub. 2103).

Under the Act of March 11, 1941 (55 Stat. 31), lend-lease master agreements were made with governments by an independent agency acting for the President and all, except those with 18 American republics, were published in the Executive Agreement Series. The Department of State, to which lend-lease functions were transferred Sept. 27, 1945, negotiated settlements which have been published in the Treaties and Other International Acts Series. Thirty-Seventh Report to Congress on Lend-Lease Operations … Dec. 31, 1955, “Status of Nations” table, pp. 15–21.

127 Ministries of finance as part of an executive branch ordinarily make grant or loan agreements, though they may be provided for in the terms of a political treaty, as was formerly frequent in the case of subsidies. For many years before 1920 China was a party to many financial transactions, mostly covered by treaty provisions, but substantively being agreements for governmental agencies to undertake some project such as railroad construction with funds furnished by the foreign government directly or to a contractor; see John V. A. MacMurray, Treaties and Agreements with and concerning China, passim. Since 1948 the Congress of the United States has appropriated funds to the President for distribution abroad by a governmental agency, latterly under the Mutual Security program. Allocation is controlled in varying details by statute, and the Defense Department and the International Co-operation Administration and its predecessors distribute funds by means of “project agreements” (FOA–10–5) between one of them and an agency of a foreign government, which internally may act in virtue of an authorization deemed to be a treaty by it.

128 Government corporations employing public funds have become a familiar phenomenon. Those which export money to foreign governments or their agencies may be illustrated by the Export-Import Bank of Washington (59 Stat. 526) which is to aid “in financing and to facilitate exports and imports and the exchange of commodities between the United States … and any foreign countries or the agencies or nationals thereof.” It purchases its capital from the Treasury and extends a credit line to successful applicants, which include states, their corporate ministries, state corporations, their political subdivisions and municipalities. Loan agreements for the credits granted conform to the bank loan agreement, the agency rather than the government being the creditor. As agent for the United States, the Bank on Dec. 23, 1954, loaned $100,000,000 to the European Coal and Steel Community, in virtue of the loan agreement of April 23, 1954 (T.I.A.S., No. 2945; 5 U. S. Treaties 525).

129 Central banks engage in a variety of international financial transactions of a highly technical nature, and within their fields are in large measure autonomous as special agencies of governments distinct from ministries of finance. Laws establishing them grant them large powers in dealing with other central banks, with which they make agreements that are not regarded as treaties. For the international powers of the Federal Reserve Board and System, see 12 U.S.C. 348a. Cognate with such agreements may be mentioned the Monetary Agreement of Sept. 25, 1936 (15 State Dept. Press Releases 267) between the governments of the United States, France and the United Kingdom, Belgium, The Netherlands and Switzerland adhering. Agreements by the International Monetary Fund with member states are treated similarly to those of central banks.

130 The International Bank for Reconstruction and Development in general uses the form of agreement developed by the commercial banks of London and New York. It does not use the general bond employed by interstate instruments. Member states are parties to both loan and guaranty agreements, the latter underwriting loans to private enterprises. The Bank regards agreements with states as registrable under Art. 102 of the Charter, but goes no further. For samples of both types see U.N. Treaty Series, Vols. 153–155. Loan Regulations Nos. 3 and 4 which are accepted in toto in agreements are registered, and an office memorandum discusses the registrability of various related or supporting documents.

131 Only suggestions of the scope of this type of document can be given here. The International Joint Commission (Art. VIII, Convention on U. S.–Canadian Boundary, Jan. 11, 1909) and the Alaskan and Mexican Boundary Commissions illustrate bilateral bodies. The Conference of Ambassadors (The Treaty of Versailles and After, pp. 7–8 and passim, State Dept. Pub. 2724 or 2757), which adopted 2,957 resolutions, and the Council of the North Atlantic Treaty Organization (Art. 9, Treaty, 34 U.N. Treaty Series 243; T.I.A.S., Nos. 1964, 2390) illustrate plurilateral implementing organs. The functions of the organs of the specialized agencies of the United Nations and the specific regulatory powers given to the International Consulting Committees of the Telecommunication Union and to the Congress of the World Meteorological Organization illustrate the sub-treaty management of a field on the multilateral level; see comment on Regulations, supra.

132 For example, the procès-verbal to the Protocol Relating to Military Obligations in Certain Cases of Double Nationality, The Hague, April 12, 1930, 178 L.N. Treaty Series 227; 4 Treaties, Conventions, etc. 5261.

133 Huber, Max, “The Intercantonal Law of Switzerland,” 3 A.J.I.L. 62 (1909)Google Scholar; Harvard Research, Law of Treaties, 29 A.J.I.L. Supp. 700 (1935).

134 The Northeastern Forest Fire Protection Compact, 63 Stat. 271. The Act of May 27, 1955 (69 Stat. 66), on mutual aid in fire protection authorizes agreements with “any governmental entity or public or private corporation or association which maintains fire protection facilities in any foreign country.” Under the Bridge Act (34 Stat. 84), several international bridges have been built.

135 Harvard Research, Law of Treaties, 29 A.J.I.L. Supp. 702–703 (1935).Google Scholar

136 5 Repertory of United Nations Practice, Art. 102, par. 31 (a) and (b).

137 Ibid.

138 Ibid. par. 31 (e).

139 Edvard Hambro, The Case Law of the International Court, citations nos. 57–70. The minutes of interpretation accompanying the Treaty of Friendship, Commerce and Navigation with Ireland, Jan. 21, 1950 (1 U. S. Treaties 785) are an example, as are the papers printed with the French Convention on Double Taxation, June 22, 1956 (Sen. Exec. J, 84th Cong., 2d Sess.).

140 The Declaration of Four Nations on General Security, Nov. 1, 1943, of the Moscow Conference of Foreign Ministers as a directive resulted in the Dumbarton Oaks Conversations; the Yalta decision on a Security Council voting formula became an instruction to the delegations of the participants at Yalta, who succeeded in incorporating it in the Charter as Art. 27.

The much-discussed agreement regarding entry of the Soviet Union into the war against Japan, signed by Stalin, Roosevelt and Churchill Feb. 11, 1945, was defined in an aide-mémoire of the United States to the Japanese Government Sept. 8, 1956 (35 Dept. of State Bulletin 484) thus: “the United States regards the so-called Yalta agreement as simply a statement of common purposes by the then heads of the participating powers, and not as a final determination by those powers or of any legal effect in transferring territories.” The agreement was published by Secretary of State Byrnes as Exec. Agr. Ser., No. 498 and was carried over at 59 Stat. 1823.

141 5 Repertory of United Nations Practice, Art. 102, par. 31 (d).

142 Loc. cit. par. 31 (f).

143 Annex XI, par. 3, of the Treaty of Peace with Italy, Feb. 10, 1947 (49 U.N. Treaty Series 215), provided that the parties would accept the recommendations of the General Assembly on the disposal of the former Italian colonies. Resolution 289 (IV), Nov. 21, 1949, set up Libya to be an independent and sovereign state by Jan. 1, 1952; provided that in 10 years Italian Somaliland should be an independent sovereign state, being administered in the interim period by Italy under the international trusteeship system; and that Eritrea should be placed under a commission which would determine the wishes of the inhabitants as well as the claims of Ethiopia for access to the sea. Subsequently resolutions 390 (V), 515 (VI), 617 (VII) and 855 (VIII) implemented what constituted sovereign acts, none of which was considered a treaty.

The Council of Foreign Ministers, in preparing the Italian treaty, proposed to assign certain duties to the Security Council, which accepted the charge by resolution of Jan. 10, 1947. The Secretariat held that there was no indication that the Security Council “intended to conclude a separate international agreement on behalf of the Organization.” 5 Repertory of United Nations Practice, Art. 102, par. 31 (g).

144 Writing of the adoption of the Stimson doctrine of non-recognition by the Assembly of the League of Nations on March 11, 1932, the late James L. Brierly stated: “… it is certainly not lightly to be departed from, and ordinary decency requires that it should not be departed from without notice to and consultation with the other concurring members” (16 Brit. Yr. Bk. of Int. Law 160 (1935)); F. Blaine Sloan, “The Binding Force of a ‘Recommendation’ of the General Assembly of the United Nations” (25 idem. 1–34 (1948)).

145 Reference is made to the Atlantic Charter, Aug. 14, 1941, the Pacific Charter, Sept. 8, 1954, and the Declaration of Washington, Feb. 1, 1956. The Atlantic Charter, however, acquired treaty status as an annex to the Declaration by United Nations, Jan. 1, 1942, which was in force as an alliance against the Axis Pact of Sept. 27, 1940, until the latter’s dissolution with the surrender of Germany May 7, 1945.

146 In 1929 the Economic Committee developed a formulation of the most-favored-nation clause which was approved by the Assembly of the League of Nations and subsequently incorporated in trade agreements of the United States and other countries.