II PARTIES TO TREATIES
Vattel, II. §§ 154-156, 206-212—Hall, § 108—Westlake, I. p. 279—Phillimore, II. §§ 48-49—Halleck, I. pp. 275-278—Taylor, §§ 361-365—Wheaton, §§ 265-267—Moore, V. §§ 734-737—Bluntschli, §§ 403-409—Heffter, §§ 84-85—Ullmann, § 75—Bonfils, No. 818—Despagnet, No. 446—Pradier-Fodéré, II. Nos. 1058-1068—Rivier, II. pp. 45-48—Nys, III. pp. 20-24—Calvo, III. §§ 1616-1618—Fiore, II. Nos. 984-1000, and Code, Nos. 743-749—Martens, I. § 104—Nippold, op. cit. pp. 104-112—Schoen in Z.V. V. (1911), pp. 400-431.
The Treaty-making Power.
§ 494. The so-called right of making treaties is not a right of a State in the technical meaning of the term, but a mere competence attaching to sovereignty. A State possesses, therefore, treating-making power only so far as it is sovereign. Full-Sovereign States may become parties to treaties of all kinds, being regularly competent to make treaties on whatever matters they please. Not-full Sovereign States, however, can become parties to such treaties only according to their competence to conclude. It is impossible to lay down a hard-and-fast rule concerning such competence of all not-full Sovereign States. Everything depends upon the special case. Thus, the constitutions of Federal States comprise provisions with regard to the competence, if any, of the member-States to conclude international treaties among themselves as well as with foreign States.[855] Thus, again, it depends upon the special relation between the suzerain and the vassal how far the latter possesses the competence to enter into treaties with foreign States; ordinarily a vassal can conclude treaties concerning such matters as railways, extradition, commerce, and the like.
[855] According to articles 7 and 9 of the Constitution of Switzerland the Swiss member-States are competent to conclude non-political treaties among themselves, and, further, such treaties with foreign States as concern matters of police, of local traffic, and of State economics. According to article 11 of the Constitution of the German Empire, the German member-States are competent to conclude treaties concerning all such matters as do not, in conformity with article 4 of the Constitution, belong to the competence of the Empire. On the other hand, according to article 1, section 10, of the Constitution of the United States of America, the member-States are incompetent either to conclude treaties among themselves or with foreign States.
Treaty-making Power exercised by Heads of States.
§ 495. The treaty-making power of all States is exercised by their heads, either personally or through representatives appointed by these heads. The Holy Alliance of Paris, 1815, was personally concluded by the Emperors of Austria and Russia and the King of Prussia. And when, on June 24, 1859, the Austrian army was defeated at Solferino, the Emperors of Austria and France met on July 11, 1859, at Villafranca and agreed in person on preliminaries of peace. Yet, as a rule, heads of States do not act in person, but authorise representatives to act for them. Such representatives receive a written commission, known as powers or full powers, which authorises them to negotiate in the name of the respective heads of States. They also receive oral or written, open or secret instructions. But, as a rule, they do not conclude a treaty finally, for all treaties concluded by such representatives are in principle not valid before ratification.[856] If they conclude a treaty by exceeding their powers or acting contrary to their instructions, the treaty is not a real treaty and not binding upon the State they represent. A treaty of such a kind is called a sponsio or sponsiones. Sponsiones may become a real treaty and binding upon the State through the latter's approval. Nowadays, however, the difference between real treaties and sponsiones is less important than in former times, when the custom in favour of the necessity of ratification for the validity of treaties was not yet general. If nowadays representatives exceed their powers, their States can simply refuse ratification of the sponsio.
Minor Functionaries exercising Treaty-making Power.
§ 496. For some non-political purposes of minor importance, certain minor functionaries are recognised as competent to exercise the treaty-making power of their States. Such functionaries are ipso facto by their offices and duties competent to enter into certain agreements without the requirement of ratification. Thus, for instance, in time of war, military and naval officers in command[857] can enter into agreements concerning a suspension of arms, the surrender of a fortress, the exchange of prisoners, and the like. But it must be emphasised that treaties of this kind are valid only when these functionaries have not exceeded their powers.