Questions of Public Law (1737)
Cornelius van Bynkershoek
On the Observance of Public Agreements and Whether There Are Any Tacit Exceptions
CIVIL law guards the contracts of individuals, considerations of honour, those of princes. If you destroy good faith, you destroy all intercourse between princes, for intercourse depends expressly upon treaties; you even destroy international law, which has its origin in tacitly accepted and presupposed agreements founded upon reason and usage. That treaties must be kept in good faith lest you destroy all this is readily granted, even by those who have learned nothing but treachery and all but frustrate the rules of good faith by numberless exceptions. Whether, however, a public agreement is always and everywhere to be kept inviolate is a very difficult question. Justin says about the ancient Parthians: ‘No reliance can be placed upon their words and promises unless these are advantageous to them,’ and Seneca makes the general statement about the human race: ‘Hardly anywhere is good faith found when its observance is inexpedient.’ The master of iniquity in his Principe teaches that treachery is lawful for princes, saying that any and every method of securing the safety of the state is honourable provided only it makes a pretence at being honourable. But that doctrine, long since exploded, has been superseded by another, somewhat more respectable but perhaps no more just. This latter doctrine holds that the saving clause, rebus sic stantibus, lies in every compact, and accordingly compacts can be broken: (l) if a new condition has arisen suitable for reopening discussion; (2) if circumstances have come to such a pass that one cannot take action; (3) if the reasons that promoted the alliance have ceased to exist; (4) if the needs of the state or expedience demand a different course. Christian Otho of Boekelen, who writes more learnedly and elegantly than you would expect of one so young, has published a Diatribe on these Tacit exceptions in public compacts. But though you employ all the restrictions with which Boekelen circumscribes these exceptions, you would hardly save yourself from Machiavelianism, if you would slink off to these dens of treachery with the itching soul of a prince.
Particularly that last exception which permits the breach of oath in case of the state’s needs and advantages, what else is it but the thing they call ratio status, a monster of many heads which almost no prince resists? And what are the three former exceptions but cloaks of treachery? He who employs any one of them will presently conclude that he can break his treaties if the observance of them under changed conditions may do harm to the state, and he who thinks thus, is treading upon treacherous ashes that hide the fires beneath. If you once grant so much, there is no case whatsoever for which you may not break your pledge with impunity. But, you will say, I made the agreement for the very reason that under the conditions of the state the agreement was advantageous, while now when circumstances are altered the compact is inexpedient and so the reasons for making it have vanished, consequently it cannot be considered that I have given my consent. Furthermore, whatever a prince agrees to, he signs for the good of his state, and binds himself with this in view, but if disadvantage comes from it, he is not bound, because to that he has not actually consented and without consent there is no obligation.
This argument may be subtle, but it does not accord with facts, and in that manner you can rescind any act whatsoever, on whatever occasion you choose. There is no such thing as a compact without consent, or consent without reasons for consenting; there is no change of will without a reason that was not applied at the time when you chose differently. By your argument no promise binds unless the results are advantageous, and if war is profitable you will reject the peace you have made. In this way a man who buys goods will repudiate the purchase if the price of them should go down, since he would change his mind with the change of price. Thus the result would be that a pledge which is binding according to all law would have no value whatsoever either in public or in private affairs.
Between the several independent nations there is no legal compulsion since the laws do not apply to international affairs, and the sole source of compulsion lies in the law. But the dictates of good faith and expediency require that international agreements should be observed, and to these must be attributed as much force as to the strongest pledge. In fact no pledge has more force than one that rests wholly upon greatness of soul. This first of all personal qualities is a particular adornment in a prince, and if it be absent, his state must fall into confusion. What prince will make a compact with a prince whose word is notoriously worth no more than a Carthaginian pledge? What will be the value of his agreements about trade, and aid in war, and the exchange of prisoners? In general these agreements are valid even between enemies, but it will be a small matter to break your word given to an enemy, if you may even break the pledge given to a friend.
If you are so capricious, you will probably break every pledge in ordinary social intercourse, for if I say that in daily life one must observe one’s pledge because the law commands it, you will presently ask why one must obey the law, and you will ask for a definite demonstration of this proposition. If I say that each man must be given his own, because he -is the master and is so considered by the state, I suppose you will ask why he is so considered, and you will inquire into the origin of property. You say that nature did not give such and such a piece of land to A more than to B; and if A has taken possession of it you will insist that since he has taken possession of what was common property, he could not legally deprive B of his share without some action on B’s part. Finally, perhaps you would acknowledge that as long as A holds possession of the land conformably to natural laws, B has no right to take it, since A has as good standing before the law as B, and other things being equal, possession is itself a point in his favour, since also the existing status should not be disturbed, except for a better cause, and since, accordingly, the cause of the defendant and of the plaintiff being on a par, no alterations should be made. But if you do not even concede this point but demand a division, then surely there is hardly a fixed point left in any case of ownership, or obligation, or finally any case that rests upon considerations of justice.
We must therefore attack the question with blunter weapons. When law has prescribed certain methods of acquiring ownership, we must observe these since no state can subsist without laws, and very expediency, the mother, I might say, of justice and equity, commands us to observe the laws. Even expediency obliges the several princes to keep their word, even though there are no laws between them, for you cannot conceive of empires without sovereigns, nor of sovereigns without compacts, nor of compacts without good faith. One must promise because one approves of the terms, and one must observe the terms because one has promised. But you will say, the observance of the terms often entails detriment and even destruction for the state. Granted, even on these terms it will perhaps be profitable to keep one’s word. The courage of the citizens and kind good fortune may possibly restore the fallen state, but honour is like the breath of life, when once it is gone, it never returns. In political as well as in civil cases the words of Cicero hold very true: ‘Nothing is more effective in binding the state together than the sense of honour.’ In my opinion, therefore, a promise must be kept even when its observance is not expedient to the state, nay even when it is dangerous. This is my opinion, and it is also that of Cyriacus Lentulus in Augustus, where he vigorously defends the view with arguments and especially with examples.
Yet I would not reject all tacit exceptions, for there are some which all nations approve of; as, for instance, if I promise aid to an ally in case he is attacked, I need not furnish the aid if the prince himself has unjustly provided cause for the attack an exception which I have treated in Book I, Chapter IX. I say I would not reject all exceptions, but neither would I admit all exceptions and qualifications of treaties that Grotius admits with captious concern, and from which Boekelen (in the above-cited Diatribe) draws most of his adornment of tacit exceptions. Nor would I adopt those of some other writers who though apparently more scrupulous are no less dishonourable. For while they hold that political agreements are inviolable, they admit that such can readily be frustrated by cleverness if they are harmful to the state. The author of the Political Disquisitions [Boxhorn] holds this opinion, but since he cannot support it by arguments, he does so only by instances of crimes.
I know that there are also other authorities in public law who tread the same path, but if we followed these leaders, all princes would soon understand how easy it is not only to deceive but also to be deceived. We must carefully beware lest this happen, and exclude all those excuses by which unprincipled rulers hide their perfidy. The ancient Romans knew well that there was a difference between the debtor ‘who had wasted borrowed moneys in pleasures and in gambling and the one who had lost it with his own through fire or theft or some other misfortune’. Yet Seneca says: ‘They recognize no exceptions, so that men may know that above all else good faith must be observed’; adding: ‘for it was better that the just excuse of a few should not be recognized than that some exception should lie open for all to attempt’. In the case of state treaties also the situation is such that it would be better to recognize no exceptions than so to increase their number that men would all but destroy the rule which demands the observance of good faith.
What then shall we say? Perhaps one or two exceptions may be allowed. It would surely be just if the question of my keeping the promise were submitted to the prince to whom I gave the promise, as in the kind of case I just mentioned, and discussed more fully in Book I, Chapter IX. Perhaps, however, you will say that this is actually not an exception, but an interpretation of treaties common in all usage. I care little what you call it; if you call it an exception, I will add another, namely that a prince is not bound beyond his capacity to perform the act promised, and the question of his capacity should be referred to the decision of a third prince who is to be a man of principle. Just as we give the favour of considering the competence (as it is called) of the individual who ‘has lost others’ property with his own in some misfortune’ as Seneca says so would we grant this the more readily to princes if they act in good faith. A prince who is unable through circumstances to keep his promise should not have to submit to force or compulsion, for since force cannot be applied to him except by warfare, what would it profit to attack a prince with an armed force in order to compel him to give what he cannot give?
If, despite this fact, you use compulsion, you have undertaken a war in an unjust cause. But the question whether the prince can or cannot keep his agreement, or whether it is due to another prince that he cannot, I would not leave to the arbitrament of the two princes involved, since judges may not sit upon their own cases; but I would refer it to neutrals. In former days public matters were often referred to the arbitration of other nations, as you may find in the passage of Grotius which I cited above.
I have roughly sketched my opinion on a subject that has caused more than one war. If I had desired to elaborate this with care and to contend with the opinions of others, I should have to write a book, especially if I added a history of how princes formerly dealt in this matter and how they still act. Such is the degradation of the human race that ‘there is hardly one who scruples to break his word and violate his pledge provided he finds it expedient to do so’. Such are the words of Buddeus in if I may cite Elementa Philosophiae Practicae. You think perhaps that he refers to the ordinary rabble and not to strutting princes, hear then what he says of these: ‘It is a crime for a man in private station to violate his bond, while in princes and rulers it is a requirement of prudence to break treaties.’ Horresco referens, but I could give a thousand instances in proof that this is wholly true. But since I am treating all these subjects with reference to the state of the United Provinces, it is pertinent to note how it stands upon this question.
I recall a case in point: in 1595 the States-General admonished Elizabeth, the Queen of England, that she should observe the terms of the treaty made in 1585 if she wished to consider her own good name. The woman made the most absurd answer, saying that ‘the contracts of princes rested only upon a pledge, and they were not binding if they resulted in detriment to the state’, and other things of the same kind. The incident is told in Camden’s History of Queen Elizabeth, and after him, in almost the same words, by Boekelen in the above-cited work. Zouche also has the story. The request of the States-General was entirely honourable and conformable to scrupulous conduct, but you will find the Estates of Holland no less conscientious; for when a book appeared, entitled Aanwysing der Heilsame Politicque gronden en Maximen van de Republicq van Holland en West-Friesland, which maintained that state agreements should be observed only when it was advantageous to do so, the Estates, by an edict dated May 28, 1669, condemned the book. They there declared openly that the doctrine that a pledge was binding only when expedient was dangerous, abominable, and execrable, and that this state which took the greatest pride in the strict observance of treaties had always and still abhorred this view. These were certainly excellent words and it were well if our deeds always conformed to them. I had intended, by running through all the epochs of our history, to examine in a special chapter the question whether the state had always acted on this principle. I began with the treaty in which, at the beginning of the republic, Elizabeth of England and the States-General agreed among other things that the ambassador of the Queen should always have a seat at the State Council a question which the above-cited Political Disquisitions discusses and I leave it to the reader whether he is right or wrong. I had intended, as I say, to continue from that treaty up to the recent treaty of February 20, 1732, according to which the Emperor of the Germans and the States-General agreed to furnish each other aid, and I may add that the bitter discussion raised about the observance of this treaty has not reached any definite conclusions. But it will be wiser to omit all this. I shall only add, that, in general, nations are usually so constituted that while you cannot charge them with flagrant treachery, you will not readily find in them striking examples of magnanimity.