616 



L A Wi 



Law 



of Nations. 



BOOK I. 



"" T ~ 



OF THE BASIS OT THE POSITIVE LAW or NATIONS. 

 CIIAP. I Of Treaties. 



Of positive 1. As sovereign powers acknowledge no legislator 

 obligations over them but God, they can have no rights and obliga- 

 te gcn'- t j ons between them but such as the divine laws impose. 

 But they may add to these primitive obligations, by 

 renouncing voluntarily a part of their rights, or taking 

 on themselves new obligations, after which they stand 

 engaged to do, not to do, or to suffer, what they were 

 not absolutely obliged to do, not to do, or to suffer. 

 The basis of these new rights and obligations which 

 form the positive law of .nations, is then the mutual 

 will of the nations concerned. This will may be decla- 

 red by words, gestures, or other marks received as the 

 signs of thought, or by actions from which consent 

 may be deduced ; or it may bepresnmed. For instance, 

 what a nation has always done hitherto we may pre- 

 sume it will do for the future. Hence the different 

 foundations of the positive law of nations, viz. express 

 covenant, tacit covenant, and custom. 



Treaties. ^- E x P ress covenants made between nation and na- 

 tion, are called public covenants, or treaties. 



Of the va- ^. ^or a covenant to be obligatory, five things are 

 Jidity of necessarily supposed : First, That the parties have 

 treaties. power to consent. Second, That they have consented. 

 Third, That they have consented freely. Fourth, That 

 the consent be mutual. And, Fi/)h, That the execu- 

 tion be possible. 



First, The parties must have power to consent. The 

 treaty must have been contracted in the name, and by 

 the authority, of the sovereign power. Any thing that 

 has been promised by the chief, or his agent, beyond 

 the limits of the authority with which the state has 

 entrusted him, is, at most, no more than a simple 

 promise, which only obliges the person who pro- 

 mises to use his endeavours to procure its ratification, 

 without binding the state, which, of course, may re- 

 fuse such ratification. On the contrary, every thing 

 that has been stipulated by an agent in conformity to 

 his full powers, ought to become obligatory on the 

 state, from the moment of signing, without even wait- 

 ing for the ratification. However, not to expose a state 

 to the errors of a single person, it is now become a ge- 

 neral maxim that public conventions (but not simple 

 military arrangements in time of war) do not become 

 obligatory till ratified. The motive of this custom 

 clearly proves that the ratification can never be refused 

 with justice, except when he who is charged with the 

 negotiation, keeping within compass with respect to his 

 public full powers, has gone beyond his secret instruc- 

 tions, and consequently has rendered himself liable to 

 punishment ; or when the other party refuses to ratify. 

 Second, That they have consented. The consent must 

 have been fully and clearly declared, either by words, 

 or by signs, to which custom has attributed the same 

 value. It is totally indifferent as to the obligation, 

 whether the words have been actually articulated, or 

 whether they have been committed to writing. Now- 

 a-days, however, in order to facilitate the proof, they 

 are always committed to writing. The form of the 

 treaty is of no consequence : a simple promise, declared 

 and accepted, has the force of a treaty between nations 

 as of a contract between individuals. 

 Third, That thy have consented freely. The consent 





must have been a voluntary act of each contracting Law 

 party. What has been extorted by physical necessity of ^atioi 

 is not obligatory, because the party has "not consent- '"""Y"^ 

 ed. What has been extorted by moral necessity, that 

 is, by the fear of a greater evil, is obligatory, if the 

 violence employed by the other party was just; but if it 

 was unjust, the obligation ceases through default of title 

 in him who wants to acquire the right. However, the 

 security, liberty, and independence of nations, could not 

 subsist, if, in default of a superior judge, and in default 

 of a right to judge in their own cause, they did not ac- 

 knowledge as just (with respect to external effects) all 

 violence employed by each other. Therefore, the plea 

 of fear cannot be opposed to the validity v of treaties be- 

 tween nation and nation, except at most in cases where 

 the injustice of the violence employed is so manifest as 

 not to leave the least doubt- 



fourth, That the consent be mutual. The consent 

 must be mutual, and must be given for the same ob- 

 ject. When an error takes place with respect to the 

 object of the covenant, it excludes the consent. It is 

 of no consequence whether the error be involuntary, or 

 owing to the insincerity of the contracting parties, or 

 one of them, or to a third person. 



The injury on the contrary that a nation may sus- 

 tain from a treaty is not a justifiable reason for such 

 nation to refuse complying with its conditions. It is 

 the business of every nation to weigh and consult its 

 own interests ; and as nothing hinders a nation from 

 acquiring a right by a covenant with another, and it 

 being impossible for any one to determine the degree 

 of injury requisite to set a treaty aside, or to judge, in 

 an obligatory manner, of the injury sustained, the se- 

 curity and welfare of all nations require that no excep- 

 tion should be admitted which would sap the founda- 

 tions of all treaties whatever. 



Fifth, That the execution be possible. The execution 

 of the treaty must be physically and morally possible : 

 so that if the accomplishment be physically impossible, 

 either from the nature of the promise or from circum- 

 stances, or if the accomplishment interferes with the 

 interests of a third party, or tends to ruin the nation 

 which has promised, the covenant becomes void, or at 

 least ceases to be obligatory.. 



4. Treaties serve either to confirm to a nation the Of the dif^ 

 rights which belong to it by the law of nature, or to ferer " so " 

 change into a positive right what was before a natural 



one. There are some treaties that are fulfilled at 

 once ; as treaties of boundary, of exchange, &c. And 

 others which can be fulfilled successively only and as 

 the occasion presents itself; such as treaties of com- 

 merce, alliances, &c. These latter are called treaties 

 in a more particular sense, (fasdcra), in opposition to 

 transitory covenants (pacta transiloria). To this may 

 be added, that treaties are sometimes mixed, including 

 articles of both sorts. 



5. Treaties, properly so called, are either personal Treaties 

 or real. They are personal when their continuance properly s 

 in force depends on the person of the sovereign %**' "~ 

 with whom they have been contracted. They are ^IJ^^* 1 ' 

 real when their duration depends on the state, inde- 

 pendently of the person who contracts ; consequently 



all treaties between republics must be real. All trea- 

 ties made for a time specified, or for ever, are also 

 real. With respect to those which are made for an in- 

 definite time, attention must be paid to the terms of the 

 treaties themselves, to circumstances, and to the Consti- 

 tutions of the contracting states, in order to decide to 

 which class they belong. Of late, sufficient care has 



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