TREATY.

In modern diplomatic practice, a treaty is a formal written agreement between states (though recently also designating agreements with and between international organizations), which is legally binding under international law. Treaties differ from a variety of other international agreements like declarations, memorandums of understanding, and gentlemen's agreements, which only create moral and political obligations, nonbinding commitments, or what has been branded as "soft law." The Helsinki Final Act of the Conference on Security and Cooperation in Europe (1975) is an example of an important international agreement that was deliberately drafted in a way that was legally nonbinding to the parties at the time, circulated at the United Nations but deliberately not registered with the Secretariat. In legal jargon, and as codified in the preamble as well as Article 26 of the Vienna Convention on the Law of Treaties (1969), a treaty, unlike other international agreements, comes under "the fundamental principle" of pacta sunt servanta. This Latin phrase means that "agreements must be observed," unless forced upon or concluded in bad faith. Pacta sunt servanta is a Ciceronian principle that has been selectively and problematically appropriated by modern treaty law. In De officiis (3.24), Cicero (106–43 b.c.e.) speaks extensively of ethical conduct and makes no distinction between agreements and promises (pacta et promissa ) in his meditation on the matter. By contrast, international legal discourse allows for agreements that do not follow the pacta sunt servanta rule, in turn providing for diplomatic flexibility and a bypassing of ethics. This makes it possible to daily exchange agreements and promises that have shades of legality, publicly simulating commitment, but in practice retaining opt-outs and remaining legally unenforceable.

Linguistic Issues

Although the word treaty can be etymologically traced back to the Latin tractus, meaning treatment, handling, discussion, and management, there was no Latin word with that root having the notion of an (international) agreement. If anything, tractus sometimes had the sense of a disagreement, of a violent handling of affairs, such as the dragging by the hair of the priestess of Apollo. A common Latin word for treaty is foedus —interestingly a word that also meant the unseemly, horrible, and detestable, probably depicting in the mind of the users the forced circumstances and unholy power deals that led to the conclusion of some. Another Latin word for treaty is conventio, from which the English word convention derives, a term currently used as a synonym for treaty, especially when following long multilateral negotiations. Conventio has in addition the meaning of an assembly and is a word that literally translates sumbasis, an ancient Greek word for treaty. Sumbainō had the meaning of coming to an agreement but also of walking together, just like in the Latin convenio. Walking together along the same path or in the same direction is a good metaphor for agreement, though in practice it was also meant literally, like the walking together of comrades to the assembly, battlefield, or exile. There were other words for treaty in ancient Greek, such as sumphōnia, the harmony of speaking with a "common voice" about an issue, depicting people in great solidarity and symphony, or sunthēkē, which meant literally the composition of words, emphasizing the textual or synthetic sense of an agreement. But the most formal and solemn treaty was called spondē, meaning literally "libation," which included the calling of the gods to witness the treaty and the taking of the oaths that sanctified it. Unlike other agreements, the breaking of a spondē was not just an illegal or immoral act, but a sacrilege.

The move to the term treaty signifies a change from the usual metaphors of agreement but also a turn toward secularization in international relations and law. In the sense of a contract between states the first recorded use of treete is in 1430. But as a technical term of international law the word is commonly employed from the end of the seventeenth century onward (Oxford English Dictionary ). Interestingly, the introduction of the term follows the end of the Thirty Years' War and the conclusion of the Treaty of Westphalia (1648), which is supposed to have secularized international norms and practice and provided the foundation of the modern (European) interstate system.

Typically, the only state that made and still makes the point of not using the name treaty for its legally binding international agreements is the Holy See. In diplomatic practice, bilateral treaties signed with the Vatican are called concordats, and canonists have gone to great pains to show that the "nature of concordats" bears practical similarities—but is not identical—to that of treaties. A concordat refers to a cordial agreement, a union of wills, the successful meeting of hearts and minds in Christian harmony. The concordat is supposed to pass its provisions spiritually, requires no diplomatic "handling," and its conclusion is avoided by the Holy See if it foresees complications in the ratification process from the other side. It is a euphemism through which papal treaty practice is rendered sui generis, supposed always to operate in concord, thus rhetorically separating itself from the worldly bargaining and crude pursuit of national interest associated with conventional treaty-making. Note also that in concordat practice, the Holy See emulates the discourse of the new covenant, which in Christian cosmology constitutes "the treaty of treaties," rendering all other sacred or secular agreements false or insignificant by comparison. It was the messianic advent of Jesus Christ that brought forth the "new covenant," bypassing and superceding the collective oath of the faithful to keep the "old covenant." As taken up in the Epistle to the Hebrews—which is precisely a call to reject the old and accept the new covenant—the old covenant requires command ethics and rabbinic enforcement, whereas the new one inscribes the divine laws in the minds and hearts of the people in concordat style (see sidebar).

The story of rendering the old covenant obsolete following the declaration of a momentous happening or new revelation has ironically established a pattern in secular treaty law, and specifically in the employment of the principle of clausula rebus sic stantibus, the "clause of things standing thus." This clause renders a treaty obsolete if there is a significant change in the conditions under which it was first concluded. The principle is a late-sixteenth-century invention coined by Alberico Gentili (1552–1608), a Protestant theologian and international jurist, in De iure belli libri tres. By mixing religious and legal discourse, oath-taking and treaty (foedus ) ratification, Gentili suggests that there is in every treaty a silent assumption, an understanding (intelligitur ) or mental reservation (subintelligi ) of a clausula rebus sic stantibus (pp. 244–245, 599). This is only the case among Christian rulers, for Gentili doubts the legal durability of treaties concluded with untrustworthy infidel rulers (nec fidere infidelibus potes ) on scriptural qua moral grounds: "For although the impious oath of an infidel may be accepted, yet what trust can be put in an unbeliever" (p. 660). That a tacit understanding of termination exists when circumstances fundamentally change reinforces the privilege of "mortal gods," but highly complicates the binding status of treaties between them. Not surprisingly, in actual diplomatic practice, statesmen from Otto von Bismarck (1815–1898) to Woodrow Wilson (1856–1924) considered the denouncement of or abrogation from a treaty as the solemn and inalienable right of state sovereignty. Taken to its logical conclusion, clausula rebus sic standibus poses a fundamental challenge to the principle of pacta sunt servanta, the treaty's defining characteristic. Still, the rebus sic standibus principle became part of customary international law and was codified—albeit in a more restrictive form because of its common abuse—in the Vienna Convention on the Law of Treaties (Article 62).

Contexts

Examining how the concept of treaty developed as a basic form of inter-and cross-cultural handling requires consideration of its ideological affinities to the concept of trade. These affinities are lexically quite striking, more so in the French words for treaty and trade, traité and traite, respectively. This is not surprising when one recalls how the conclusion of treaties was an important means through which Western trade expanded, initially in the East and then globally. During this period we saw the development of the terms "treaty port" and "treaty national." Treaty ports were established all over the coasts of East Asia and along navigable waterways too, through treaties between Western nations and the rulers of China, Japan, Korea, and Siam. The treaty ports regime allowed for the establishment of self-administered foreign settlements for the purposes of trade, settlements that enjoyed varying degrees of autonomy. The main provision was that foreign or treaty nationals enjoyed extraterritoriality and were therefore deemed to be outside the jurisdiction of the country they actually resided in, thus being legally accountable only to their respective consular courts. Though treaty ports and nationals were not limited to the east coast of Asia, and could be found also in the Ottoman Empire and Morocco, it was in China that they reached unparalleled proportions to the bitterness of the local elite that was forced to capitulate. There was a time that up to eighteen countries, not only Western powers but also Mexico, Brazil, and Peru, signed such treaties with China, in the first instance for the promotion of trade, but in the longer term infiltrating the region culturally and politically through missionaries and consuls.

In the sense of "worldly handling," treaties were also used as an instrument for colonial expansion. Note, parenthetically, that formal treaties were not always employed, especially with regard to the colonization of Africa, or the Spanish conquests of America, which were "legalized" through the Papal Bull Inter caetera (1493). The latter gave the "illustrious sovereigns" of Castile the exclusive right to acquire all the land they had discovered or might discover in the future one hundred leagues west of the Azores and Cape Verde islands. In terms of local instruments, the Spanish morally and practically dispossessed indigenous peoples through a legal caricature, the Requerimiento, a Eurocentric and Christocentric document on the history and state of the world, read to the natives and asking them to accept it by submitting to Spanish sovereignty or be made to submit. Nonetheless, treaties with the natives were often employed by colonial powers when commercial, political, or military interests so demanded. Such treaties were textually very basic, written in paternalistic discourse, and indirectly legitimated colonial occupation and governance in exchange for vague promises of protection of native life, possession, and culture. Their current "anomalous" status in terms of legal claims and retrospective enforcement has become a hotly contested issue in, among other places, North America, Australia, and New Zealand.

Covenants Old and New

Had that first covenant been faultless, there would have been no occasion to look for a second to replace it. But God finds fault with his people when he says, "The time is coming, says the Lord, when I shall conclude a new covenant with the house of Israel and the house of Judah. It will not be like the covenant I made with their forefathers when I took them by the hand to lead them out of Egypt; because they did not abide by the terms of that covenant, and so I abandoned them, says the Lord. For this is the covenant I shall make with Israel after those days, says the Lord: I shall set my laws in their understanding and write them on their hearts; I shall be their God, and they will be my people. They will not teach one another, each saying to his fellow-citizen and his brother, "Know the Lord!" For all of them will know me, high and low alike; I shall pardon their wicked deeds, and their sins I shall remember no more." By speaking of a new covenant, he has pronounced the first one obsolete; and anything that is becoming obsolete and growing old will shortly disappear.

source: Hebrews 8:7–13, in The Revised English Bible with the Apocrypha.

Perhaps a paradigmatic treaty between a colonial power and an indigenous community is the Treaty of Waitangi (1840), concluded between Britain and the Maori chiefs of New Zealand (see sidebar). This treaty is interesting because it has been retrospectively enforced, albeit reluctantly and selectively, through a 1975 New Zealand Act of Parliament and currently forms the basis of a number of claims by Maori groups for partial restitution and nondiscrimination. Still, the treaty's terms and processes expose the catachrestic political environment within which colonial treaty-making was taking place. For a start, there are significant differences between the English and the Maori texts of the treaty as well as differences in the understanding of the concepts used within. The English text included a provision that the Maori chiefs were "claiming authority over the Tribes and Territories which are specified after our respective names," a passage that is missing from the Maori text. The Maori translations for "government" (kawanatanga ) did not have the Western conception of the exercise of sovereignty, nor did "rights and duties" (tikanga ) have the notion of the pursuit of individual claims and obligations outside the remit of local custom (see www.archives.govt.nz/holdings/treaty_frame.html). There are also variations between the original Maori text and the eight copies in Maori opened for signature. The more than five hundred signatures to the treaty were a "cumulative process," added by different chiefs on different copies at different locations in New Zealand. In addition, not all copies bear a government seal. Some chiefs signed on unknown dates and without any witnesses. Some signatories have not been identified. Others signed without any clarification on the text of what representative authority they had, if any. The "Confederation of the Chiefs" referred to in the treaty was instigated by the British Resident in 1835 and only covered the north of the country. What is more, some important chiefs and tribes rejected the treaty and refused to sign, yet found themselves bound by it. As a leading legal authority implies, even using the most "generous" and "creative" interpretation of the provisions of the treaty, the Maori people cannot overcome the biases of the initial colonial policy through which they were "legally" dispossessed of their lands and polities (Brownlie). Ironically, recent human rights treaties of which they are not a party may provide a better basis for recognition

The Treaty of Waitangi, 1840

Victoria, the Queen of England, in her concern to protect the chiefs and subtribes of New Zealand and in her desire to preserve their chieftainship and their lands to them and to maintain peace and good order considers it just to appoint an administrator one who will negotiate with the people of New Zealand to the end that their chiefs will agree to the Queen's Government being established over all parts of this land and (adjoining) islands and also because there are many of her subjects already living on this land and others yet to come. So the Queen desires to establish a government so that no evil will come to Maori and European living in a state of lawlessness. So the Queen has appointed me, William Hobson, a captain in the Royal Navy to be Governor for all parts of New Zealand (both those) shortly to be received by the Queen and (those) to be received hereafter and presents to the chiefs of the Confederation chiefs of the subtribes of New Zealand and other chiefs these laws set out here.

The First

The chiefs of the Confederation and all the chiefs who have not joined that Confederation give absolutely to the Queen of England for ever the complete government over their land.

The Second

The Queen of England agrees to protect the chiefs, the subtribes and all the people of New Zealand in the unqualified exercise of their chieftainship over their lands, villages and all their treasures. But on the other hand the Chiefs of the Confederation and all the Chiefs will sell land to the Queen at a price agreed to by the person owning it and by the person buying it (the latter being) appointed by the Queen as her purchase agent.

The Third

For this agreed arrangement therefore concerning the Government of the Queen, the Queen of England will protect all the ordinary people of New Zealand and will give them the same rights and duties of citizenship as the people of England.

(Signed) W. HOBSON

Consul and Lieutenant-Governor

So we, the chiefs of the Confederation and of the subtribes of New Zealand meeting here at Waitangi having seen the shape of these words which we accept and agree to record our names and our marks thus.

Was done at Waitangi on the sixth of February in the year of our Lord 1840.

source: Literal translation of the Maori text of the Treaty as proposed by Sir Hugh Kawharu; quoted from Ian Brownlie, Treaties and Indigenous Peoples, pp. 6–7.

of their claims than the treaty they signed as "independent" and "sovereign" people. In practice, of course, indigenous groups use a combination of the original bilateral and recent multilateral treaties to support their claims.

Jurisprudence

Such cases illustrate that the modern idea of treaty developed within but also beyond the parameters of international legal history. In global practice, and from a non-Western perspective, treaties of particular historical periods could be seen as instruments for the aggressive promotion of commercial and imperial interests. In this sense, their primary aim was less the creation of legally binding commitments and more the economic and political infiltration of territories whose population status was legally defined through the treaty in ways that made this possible. As unequal devices and cover-ups through which Western global hierarchy was legitimated and reinforced, such historical treaties provide an antinomy to their conventional legal purpose as currently understood. Yet there are specific conceptual and practical limitations that need to—and perhaps cannot—be overcome in transforming a treaty into a politically neutral instrument. For example, as the Vienna Convention on the Law of Treaties (Article 2.1a) and treaty specialists outline, the designation of an agreement as a "treaty" does not in itself render it into a treaty, if written in contrary spirit and terminology. Similarly, the designation of an agreement by a nontreaty name (including memorandum of understanding) does not mean that it is automatically not a treaty, if parties textually display intention to be bound, yet decide not to go through the usual legal motions. In short, almost anything is technically possible given that the status of international agreements, in the final analysis, always depends on the definition whims of sovereign agents. That is why legal attempts to progressively develop the concept of treaty by extending it to all kinds of agreements that create binding obligations, and thus challenging the devious uses of "soft law," may be important but can only go so far. Soft law is an expedient diplomatic practice that is likely to continue, exploiting the space between the "hard" obligations of treaty making and the dubious legality of nontreaty commitments, "creatively" mixing the two when politically necessary, establishing concomitant duties of varying degrees. This is not to belittle the usefulness and importance of treaties in creating contractual obligations that can be recognized if parties to a treaty agree (a current prerequisite under international law) to take disputes over validity and interpretation before an international tribunal or the International Court of Justice. It should be remembered, however, that treaties, like the one done in Waitangi, have also been an instrument to obliterate an international legal personality and deny an international locus standi, by creating internal rather than external treaty obligations, which can always be bypassed by new domestic law. From this perspective, as a means of both constituting and erasing international legal subjectivity, treaties have been essential in reproducing state sovereignty, through which humans invariably benefit or suffer.

See also International Order ; Peace ; War .

bibliography

Aust, Anthony. Modern Treaty Law and Practice. Cambridge, U.K.: Cambridge University Press, 2000.

Brownlie, Ian. Treaties and Indigenous Peoples. Oxford: Clarendon, 1992.

Cicero. De officiis. Translated by Walter Miller. London: Heinemann, 1913.

Deloria, Vine, and David E. Wilkins. Tribes, Treaties, and Constitutional Tribulations. Austin: University of Texas Press, 1999.

Fairbank, John King. Trade and Diplomacy on the China Coast: The Opening of Treaty Ports, 1842–1854. Cambridge, Mass.: Harvard University Press, 1964.

Gentili, Alberico. De iure belli libri tres. Translated by John C. Rolfe. Oxford: Clarendon, 1933.

Herodotus. Histories. Rev. ed. Translated by Alfred Denis Godley. Cambridge, Mass.: Harvard University Press, 1938.

Hillgenberg, Hartmut. "A Fresh Look at Soft Law." European Journal of International Law 10, no. 3 (1999): 499–516.

Klabbers, Jan. The Concept of Treaty in International Law. Boston: Kluwer, 1996.

Ovid. Metamorphoses. Rev. ed. Translated by Frank Justus Miller. Cambridge, Mass.: Harvard University Press, 1984.

The Revised English Bible with the Apocrypha, Oxford: Oxford University Press, 1989.

Satow, Ernest. A Guide to Diplomatic Practice. London: Longmans, 1957.

Sinclair, I. M. Vienna Convention on the Law of Treaties. Manchester, U.K.: Manchester University Press, 1984.

Costas M. Constantinou

TREATY

A compact made between two or more independent nations with a view to the publicwelfare.

A treaty is an agreement in written form between nation-states (or international agencies, such as the united nations, that have been given treaty-making capacity by the states that created them) that is intended to establish a relationship governed by international law. It may be contained in a single instrument or in two or more related instruments such as an exchange of diplomatic notes. Various terms have been used for such an agreement, including treaty, convention, protocol, declaration, charter, covenant, pact, act, statute, exchange of notes, agreement, modus vivendi ("manner of living" or practical compromise), and understanding. The particular designation does not affect the agreement's legal character.

Though a treaty may take many forms, an international agreement customarily includes four or five basic elements. The first is the preamble, which gives the names of the parties, a statement of the general aims of the treaty, and a statement naming the plenipotentiaries (the persons invested with the power to negotiate) who negotiated the agreement and verifying that they have the power to make the treaty. The substance of the treaty is contained in articles that describe what the parties have agreed upon; these articles are followed by an article providing for ratification and the time and place for the exchange of ratifications. At the end of the document is a clause that states "in witness whereof the respective plenipotentiaries have affixed their names and seals" and a place for signatures and dates. Sometimes additional articles are appended to the treaty and signed by the plenipotentiaries along with a declaration stating that the articles have the same force as those contained in the body of the agreement.

Article II, Section 2, Clause 2, of the U.S. Constitution gives the president the power to negotiate and ratify treaties, but he must obtain the advice and consent of the Senate (in practice solicited only after negotiation); two-thirds of the senators present must concur. Article I, Section 10, of the Constitution forbids the states to enter into a "treaty, alliance, or confederation," although they may enter into an "agreement or compact" with other states, domestic or foreign, but only with the consent of Congress.

The U.S. Supreme Court, in Missouri v. Holland, 252 U.S. 416, 40 S. Ct. 382, 64 L. Ed. 641 (1920), established that U.S. treaties are superior to state law. Acts of Congress, however, are equivalent to a treaty. Thus, if a treaty and a law of Congress are inconsistent, the one later in time prevails. The Court has never found a treaty to be unconstitutional, and few treaties have been challenged. In general, the Court views a dispute over a treaty as a political question outside its jurisdiction.

Traditionally, international law required treaties to be ratified in the same form by all parties. Consequently, reservations or amendments proposed by one party had to be accepted by all. Because of the large number of participating states, this unanimity rule has proved difficult to enforce in modern multilateral treaties sponsored by international agencies for the purpose of creating legal regimes or codifying rules of international law. Where agreement exists on the essential elements of a treaty, international law increasingly is allowing reservations as to minor points not unanimously accepted. Treaties for which ratification is specified come into effect upon the exchange of ratifications between the parties or upon deposit of the ratifications with a designated party or international agency, such as the Secretariat of the United Nations.

A treaty may be terminated in accordance with specifications in the treaty or by consent of the parties. War between the parties does not invariably terminate treaties, as some treaties are made to regulate the conduct of hostilities and treatment of prisoners. Other treaties may be suspended for the duration of the hostilities and then resumed. An unjustified, unilateral abrogation of a treaty may give rise to possible international claims for any injury suffered by the other parties.

Treaties are usually interpreted according to the ordinary sense of their words in context and the apparent purposes to be achieved. If the meaning of the language is unclear or there is doubt that it expresses the intention of the parties, the work product of the negotiation process may be consulted as well as other extrinsic evidence.

trea·ty / ˈtrētē/ • n. (pl. -ties) a formally concluded and ratified agreement between countries.

treaty †literary treatment, discussion XIV; discussion of terms; covenant, contract XV. ME. trete(e) — AN. treté, (O)F. traité :- L. tractātus TRACTATE; see -Y5.