See discussions, stats, and author profiles for this publication at: https://www.researchgate.

net/publication/301181232

Introduction: On the Role of Treaties in the Development of International Law

Chapter · September 2012

DOI: 10.1007/978-3-642-19291-3_1

CITATIONS READS

0 18,442

2 authors, including:

Oliver Dörr
Universität Osnabrück
36 PUBLICATIONS   116 CITATIONS   

SEE PROFILE

Some of the authors of this publication are also working on these related projects:

Vienna Convention on the Law of Treaties View project

All content following this page was uploaded by Oliver Dörr on 16 July 2018.

The user has requested enhancement of the downloaded file.

Metadata of the chapter that will be visualized online

Chapter Title Introduction: On the Role of Treaties in the Development of International

Law
Copyright Year 2017
Copyright Holder Springer-Verlag GmbH Germany
Corresponding Author Family Name D₠
orr
Particle
Given Name Oliver
Suffix
Division Professor of Public Law, European Law, Public International
Law and Comparative Law
Organization European Legal Studies Institute, University of Osnabr₠uck
Address Osnabr₠
uck, Germany
Abstract Treaties form the basis of most parts of modern international law. They serve
to satisfy a fundamental need of States to regulate by consent issues of
common concern, and thus to bring stability into their mutual relations. As
an instrument for ensuring stability, reliability and order in international
relations, treaties are one of the most important elements of international
peace and security. This is why, from the earliest days in the history of
international law, treaties have always been the primary source of legal
relations between entities today known as States. The Preamble of the VCLT
itself emphasizes the fundamental role of treaties in the history of
international relations and especially the importance of treaties for
developing peaceful co-operation among nations. This fundamental
importance of treaties proved to be a continuum, while the rules and
procedures of treaty-making, as well as the contents of international
agreements, changed through the centuries.

D₠
orr
 Introduction: On the Role of Treaties in the Development of
International Law

Treaties form the basis of most parts of modern international law. They serve to 1
satisfy a fundamental need of States to regulate by consent issues of common
concern, and thus to bring stability into their mutual relations. As an instrument
for ensuring stability, reliability and order in international relations, treaties are one
of the most important elements of international peace and security. This is why,
from the earliest days in the history of international law, treaties have always been
the primary source of legal relations between entities today known as States.1
The Preamble of the VCLT itself emphasizes the fundamental role of treaties in the
history of international relations and especially the importance of treaties for
developing peaceful co-operation among nations. This fundamental importance of
treaties proved to be a continuum, while the rules and procedures of treaty-making,
as well as the contents of international agreements, changed through the centuries.
The history of international treaties is as long as the history of organized human 2
co-existence. The first treaties known today are probably those concluded by the
rulers of the Hittite empire with their neighbors and vassals in the fourteenth
century BC,2 followed by Hittite treaties with Ramses II, King of Egypt, around
1280–1270 BC.3 The oldest international treaty preserved in full text is a friendship
and commerce agreement between the Kings of Elba and Ashur concluded in the
middle of the third century BC, which was found in the archive of the palace of
Elba.4
The medieval world had neither States nor a State system in the modern sense of 3
these terms, but due to its numerous sovereigns, a remarkable number of interna-
tional treaties were conducted. During the early Middle Ages, treaties of a legal
nature were not only concluded between more or less independent princes and
authorities, but also between all kinds of authorities of different ranks and legal
positions.5 Only the church was able to act as a supra-personal, institutional treaty
party. A treaty engagement was usually considered to be a personal obligation
between the contracting parties, which is why an international treaty was, as it had
been the tradition in the late Roman era, in most cases concluded orally and
confirmed in a ceremony by oath. In those days, the treaty commitment was in
practice based upon unilateral acts adopted by each contracting party under its own

1
Tietje (1999), p. 30; Kolb, p. 1.
2
See Grewe (1995), pp. 2–17. Examples dating even further back are given by Sulyok (2014).
3
Grewe (1995), pp. 18–23; Harvard Draft 666, citing a treaty of 1272 BC.
4
Ziegler (2007), } 2 II 1.
5
Grewe (2000), p. 89.
# Springer-Verlag GmbH Germany 2017
O. D€orr, K. Schmalenbach (eds.), Vienna Convention on the Law of Treaties,
DOI 10.1007/978-3-662-55160-8_1
 Introduction: On the Role of Treaties in the Development of International Law

municipal order, and the binding force of the treaty resulted from the fact that it had
been sworn to God.6
4 In the later Middle Ages, the procedure of concluding treaties became more
sophisticated, as negotiations were conducted by delegated envoys who themselves
confirmed by oath that their sending sovereign would accredit the treaty.7 In a way,
that procedure constitutes the historical origin of the legal technique of ratification.
In that period, it also became common to register a treaty in the form of a written
document sealed by the contracting parties.8 The Curia provided a treaty register
and some notary functions, which were closely linked to the concept of the Church,
and in particular the Pope, as the supreme guardian of all treaties. As to contents,
treaties of alliance and peace were dominating, although trade and arbitration
agreements can also be found. Treaties could be given the force of statutory law,
for example in the imperial Statum in favorum principum of 1231.9 More fre-
quently, however, they were recorded in separate documents, which were formally
independent of each other, as, for example, in the case of the Concordat of
Worms.10 The first synallagmatic treaty incorporated in one document is said to
have been the Treaty of Constance, concluded between Emperor Frederick I and
Pope Eugen III in 1153.11
5 During the Spanish Age, the first phase of the emerging modern State, interna-
tional relations emancipated themselves from the Roman Curia, which was aptly
illustrated by the fact that Catholic sovereigns began to conclude treaties in their
own right.12 Sovereigns still entered into international engagements in their per-
sonal capacity, for which the treaty between France and the Ottoman Empire (1535)
is a good example, because here Sultan S€ uleyman and King Francis I agreed on a
capitulation, which was supposed to remain in force for the lifetime of both rulers.13
Similarly, the Treaty of Richmond, concluded between King Henry VII of England
and King James IV of Scotland in 1501, was to remain in force for one year after
both kings had died.14 As in the Middle Ages, treaties were not just concluded
between sovereigns, but occasionally also by regional public authorities: for
instance, the city of La Rochelle entered into an alliance with the King of England,
without dissolving its allegiance to the King of France.15
6 The agreements between Christian rulers and ‘States’ became more and more
detailed, until the Peace of Westphalia, concluded in 1648 in the cities of M€unster

6
Kolb, p. 2.
7
Ziegler (2007), } 18 I 2.
8
Grewe (2000), p. 90.
9
Ibid.
10
Ibid.
11
Mitteis (1957), p. 579.
12
Ziegler (2007), } 30 I 1 b).
13
Ibid.
14
Grewe (2000), p. 196.
15
Ibid.

orr
D€
Introduction: On the Role of Treaties in the Development of International Law

and Osnabr€ uck, undertook the first attempt of building a common European order of
peace. Additionally, the use of some typical clauses, such as clauses guaranteeing
amnesty,16 became common. Hugo Grotius elaborated the theoretical foundations
of treaty law in 1625 in his seminal work De iure belli ac pacis libri tres by
presenting a general theory of treaties based on the concept of natural justice.17
He focused in particular on the scope of the clausula rebus sic stantibus and the
general applicability of the principles of equity and good faith.
In the French Age, the development of intergovernmental relations reached a 7
relevance and perfection, which was unknown before.18 However, treaties between
States were still mostly legal transactions pertaining to the settlement of a specific
dispute or to a specific bargain in an individual case: the conclusion of a peace, the
establishment of a boundary, the cession of territory, etc. Treaties of a law-making
character were almost unknown.19 Although monarchs still appeared as the con-
tracting parties, they were just listed by their most important title, which demon-
strated that the parties did not only engage themselves personally anymore, but also
the territorial entity they represented.20
The situation changed in the nineteenth century, due to the 40 years of peace 8
following the Congress of Vienna in 1814/15. That period of stability, until then
unknown in European history, made it possible to concentrate international treaty
relations on technical and administrative issues.21 Instead of just concluding treaties
on specific legal transactions, States began to use treaties as a means to regulate
fundamental aspects of their international relations. Codification as technique to be
employed in the form of collective treaties was promoted through a significant
number of international conferences. For instance, the rules on maritime neutrality
were partly codified by the Paris Peace Conference of 1856,22 and considerable
progress was made in respect of humanitarian guarantees to be applied in warfare as
a result of the 1864 Geneva Convention for the Amelioration of the Condition of the
Wounded of Armies in the Field. Referring to the use of treaties as instruments of
international legislation, the legal doctrine began to distinguish between treaties on
specific legal transactions (contracting treaties) and law-making treaties.23 The
instrument of collective treaties was accompanied by technical innovations, such
as ‘open treaties’, reservations and general participation clauses.24 Beside these

16
For example “perpetua oblivio et amnestia”, agreed to in Art II of the Peace of Westphalia
(Treaty of Osnabr€uck between the Emperor and Sweden), reprinted in Grewe WE (ed) (1988)
Fontes Historiae Iuris Gentium, Vol II. De Gruyter, Berlin, pp. 188, 190.
17
Ziegler (2007), } 30 I 3.
18
Ziegler (2007), } 36 I 1.
19
Grewe (2000), p. 360.
20
Grewe (2000), p. 361.
21
Tietje (1999), p. 31.
22
1859 Paris Declaration Respecting Maritime Law, reprinted in Ronzitti N (ed) (1998) The Law
of Naval Warfare. Nijhoff, Dordrecht, p. 61 et seq.
23
See eg Triepel (1899), p. 27 et seq.
24
Grewe (2000), p. 514.

orr
D€
 Introduction: On the Role of Treaties in the Development of International Law

structural developments, the number of bilateral agreements increased significantly

due to the growing interdependence of States, which resulted from the technical and
economic developments in the time of industrial revolution.25 Approximately ten
thousand treaties were in force in 1917, which is why the nineteenth century is
described from the international legal point of view as an era of impressive growth
of written law.26
9 A further structural development of treaty law during the nineteenth century,
which had a significant impact on the international legal system as a whole, was the
creation of international organizations through multilateral treaties of a collec-
tive character. The first administrative union, as they were then called, was estab-
lished in 1831 on the basis of the final document of the Congress of Vienna with the
constitution of the “Central Commission for the Rhine Shipment”.27 It was fol-
lowed by similar river commissions. The positive experience with those river
regimes and the growing awareness that some administrative tasks, in view of
their cross-border relevance, could not be dealt with by one State alone, let a
number of international organizations come into existence, such as the International
Telegraph-Union (1865) and the Universal Postal Union (1874). The mostly
administrative character of those treaties and treaty-based organizations differed
from the traditional perspective of international law, which had until then been
exclusively directed towards the coordination of national politics, and illustrated a
dramatic change in the structure of international treaties.28
10 In no other phase in the history of international relations have so many attempts
of law-making been undertaken in such a short period of time as in the inter-war
period from 1919 to 1939. Not least because the League of Nations, and in
particular Article 18 of its Covenant, which prescribed the registration of treaties
and made their publication a precondition for their binding force, created an
adequate legal environment, the technique of treaty-making improved consider-
ably.29 Almost 3600 “treaties or international engagements” were registered with
the Secretariat of the League of Nations between May 19, 1920, and January 1,
1935.30
11 The short era of the League of Nations was characterized by a remarkable
discrepancy between the official appraisal of treaties as a form of political action,
on the one hand, and the unsatisfactory state of the law on which those actions were
based, on the other. The ‘sanctity of treaties’, or treaty obligations, was never
proclaimed more intensively and with more pathos than during that period,31 and

25
Ziegler (2007), } 42 I 2.
26
Nussbaum (1954), pp. 196–197.
27
Tietje (1999), p. 32.
28
Tietje (1999), p. 34.
29
Ziegler (2007), } 46 VI 1.
30
Harvard Draft 666 (Introductory Comment).
31
Grewe (2000), p. 608, who refers to the famous resolution of the LoN Council after the
conference of Stresa (17 April 1935), (1935) LoN Official Journal 16:551.

orr
D€
Introduction: On the Role of Treaties in the Development of International Law

the treaties and official statements, which emphasized the sanctity of contractual
agreements between States were extraordinarily numerous.32 For instance, the
preamble of the Covenant of the League of Nations accentuated the “scrupulous
respect for all treaty obligations in the dealings of organized peoples with one
another”. The former German Emperor William II was arraigned by the Allied
Powers for “a supreme offence against international morality and the sanctity of
treaties” (Article 227 Treaty of Versailles of 1919). And speaking in 1937, the US
Secretary of State, Cordell Hull, said of US foreign policy:
We advocate faithful observance of international agreements. Upholding the principle of
the sanctity of treaties, we believe in modification of provisions of treaties, when need
therefore arises, by orderly processes carried out in the spirit of mutual helpfulness and
accommodation. We believe in respect by all nations for the rights of others and perfor-
mance by all nations of established obligations.33

Although, thus, the number and the importance of international treaties increased,
and their provisions constituted a large part of the contemporary positive interna-
tional law, there was no structured and well-defined law of treaties. Already the
term ‘treaty’ itself was considered to be of vague and uncertain content, and the state
of the law of treaties unsatisfactory, due, among others, to the lack of common formal
and procedural standards accepted as such by the various governments.34
In an attempt to change that, the League of Nations Committee of Experts on 12
Codification of International Law included in 1926 on its list of possible subjects
for codification the question “whether it is possible to formulate rules to be
recommended for the procedure of international conferences and the conclusion
and drafting of treaties, and what such rules should be”.35 However, when the
Committee’s report on the subject came before the Council of the League of
Nations, the matter was thought to be “in no sense urgent” and not pursued any
further.36 In 1925, the American Institute of International Law, having been
requested by the Governing Board of the Pan American Union to draw up projects
for the codification of international law, prepared a projet on ‘Treaties’, which led,
after some modifications, to the adoption by the Sixth International Conference of
American States, on 20 February 1928, of the Havana Convention on Treaties.37
However, the drafting of that instrument was defective in some respects, for
example in that no definition or explanation was given of the term “treaty”;
moreover, the principles embodied therein were rather fragmentary and did not,
therefore, significantly contribute to the clarification of the law of treaties. The
Convention on the Law of Treaties drafted by the Harvard Research in

32
Examples given, eg, by Wehberg (1959), pp. 782–784.
33
Quoted by Wehberg (1959), p. 783.
34
Harvard Draft 667 (Introductory Comment).
35
League of Nations Document C.196.M.70.1927.V, 105, quoted in Harvard Draft, at p. 669.
36
Harvard Draft 670 (Introductory Comment).
37
Harvard Draft 670 (Introductory Comment); Text of the Convention in (1928) AJIL 22
Supp:138.

orr
D€
 Introduction: On the Role of Treaties in the Development of International Law

International Law in 1935 (Harvard Draft) went much further along that road and
helped to clarify many aspect of the treaty law of its time. Its definition and rules
were important points of reference for later discussions on the law of treaties,
including those of the International Law Commission.
13 Despite the acknowledged importance of treaties for international peace and
security, it was not until 1969 that the first comprehensive codification of interna-
tional treaty law was adopted at the Vienna Conference on the Law of Treaties. The
Conference marked the culmination of many years of tireless work of the ILC,
which had emphasized the necessity of a codified law on treaties by listing the
subject as suitable for codification already in its first session in 1949, and moreover
by including the law of treaties among the three priority topics selected for study.38
The Commission devoted 18 years (1949–1966) and 292 meetings to the topic, four
Special Rapporteurs prepared 17 reports,39 before the ILC could complete its task
with the submission of its final set of draft articles in 1966. This may seem a long
time for drafting a legal text, but already the ambitious aim pursued with it, to adopt
the “treaty on treaties” with a universal scope of application, ie for the international
community as a whole, lets the time spent on it appear worthwhile. Moreover,
compared to the long history of treaties in international relations, the time it took to
actually prepare a codification of the international law on treaties is just a blink of
an eye. After all, it took more than 3000 years of treaty-making before the law of
treaties was finally codified.

References

Grewe WE (ed) (1995) Fontes Historiae Iuris Gentium, vol I. De Gruyter, Berlin
Grewe WE (2000) The epochs of international law. De Gruyter, Berlin
Mitteis H (1957) Die Rechtsidee in der Geschichte. B€ ohlau, Weimar
Nussbaum A (1954) A concise history of the law of nations, 2nd edn. MacMillan, New York
Sulyok G (2014) Treaties, origin. In: MPEPIL (last updated August 2014)
Tietje C (1999) The changing legal structure of international treaties as an aspect of an emerging
global governance architecture. GYIL 4:26–55
Triepel H (1899) V€olkerrecht und Landesrecht. Hirschfeld, Leipzig
Wehberg H (1959) Pacta Sunt Servanda. AJIL 53:775–786
Ziegler K-H (2007) V€olkerrechtsgeschichte, 2nd edn. Beck, M€ unchen

38
[1949-II] YbILC 281.
39
Villiger, History of the Convention MN 13.

orr
D€

View publication stats