¹ Marc Bloch, The Historian’s Craft 39–47 (Peter Putnam trans., 1954) (1941).

² Treaty-making power has institutional and substantive aspects. As the reporters of the Restatement observe in their discussion of Article 46 of the Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331, “manifest violation might involve either procedural irregularities or a contravention of substantive prohibitions or requirements of domestic law.” Restatement (Third) of the Foreign Relations Law of the United States §311 comment c (1987).

³ Peter Haggenmacher, Some Hints on the European Origins of Legislative Participation in the Treaty-Making Function, 67 Chi.-Kent L. Rev. 313 (1992). See also Hans Blix, Treaty-Making Power 3–6 (1960).

⁴ Luzius Wildhaber, Treaty-Making Power and Constitution 9 (1971).

⁵ Id.

⁶ Onuma Yasuaki thus demonstrates the impact of ecclesiastical thinking on agreements: “the failure to keep promises was a sin under Christian doctrine: canonists were persistently critical of Roman law’s denial of the binding force of a nudum pactum. Thus that principle gradually lost its sway.” Onuma Yasuaki, Agreement, in A Normative Approach to War 174, 179 (Onuma Yasuaki ed., 1993) (footnote omitted).

⁷ See generally Hersch Lauterpacht, Private Law Sources and Analogies of International Law 8–15 (1927).

⁸ On the invalidity of treaties in modern law, see Ian Sinclair, The Vienna Convention on the Law of Treaties, ch. 6 (2d ed. 1984); Theodor Meron, Article 46 of the Vienna Convention on the Law of Treaties (Ultra Vires Treaties): Some Recent Cases, 49 Brit. Y.B. Int’l L. 175 (1978).

⁹ For an excellent discussion of the development of the general and regional Estates of France, their composition, and their legal and political role, see P. S. Lewis, Later Medieval France 328–74 (1968).

The Estates were not standing bodies and their summoning often posed considerable physical difficulties. Estates could be general, regional or local and their influence and composition varied greatly. They originated as a mechanism for the king to obtain the legal consent of the community in particularly difficult matters and for the community to voice its grievances and demands. No general assemblies of the whole kingdom were held between 1343 and the 1420s. Id. at 334. “Estates-General” were first convened by Louis IX at Tours in 1468.

¹⁰ Id. at 343.

¹¹ Compare Wildhaber, supra note 4, ch. 1.

¹⁸ 2 Balthazar Ayala, Three Books on the Law of War and on the Duties Connected with War and on Military Discipline (John Pawley Bate trans., Carnegie ed. 1912) (1582).

¹³ 2 Alberico Gentili, De jure belli libri tres (John C. Rolfe trans., 1931, Carnegie ed. 1933) (1612). Prima commentatio de jure belli was published in 1588, the second and third parts in 1589. The three books appeared as a new work in 1598 under the title De jure belli libri tres.

¹⁴ 2 Hugo Grotius, De jure belli ac pacis libri tres (Francis Kelsey trans., Carnegie ed. 1925) (1646). The first edition appeared in 1625. For the Latin text, see 1 id. (1913). For a detailed analysis of Grotius’s work, including on treaties, see A Normative Approach to War, supra note 6. Kimura Makoto writes that, for Grotius, a treaty as such was a specific legal act and did not have the status of an independent source of law. Kimura Makoto, Agreements between Nations: Treaties and Good Faith with Enemies, in id. at 308, 314. Another important study of Grotius is Peter Haggenmacher, Grotius et la doctrine de la guerre juste (1983).

¹⁵ It is not material to my task to explore the sources of the jus gentium of Gentili and Grotius, often derived from Roman law, on which a rich literature exists already. See, e.g., Lauterpacht, supra note 7, and, especially, Peter Haggenmacher, Grotius and Gentili: A Reassessment of Thomas E. Holland’s Inaugural Lecture, in Hugo Grotius and International Relations 133 (Hedley Bull, Benedict Kingsbury & Adam Roberts eds., 1990).

I shall not discuss Francisco Suarez or Francisco de Vitoria because their works do not significantly deal with the subjects I explore.

¹⁶ The work of Bodin is especially important in this regard. See Jean Bodin, Six Livres de la république (1577), translated as The Six Books of the Commonweale (Kenneth Douglas McRae ed., 1962) (facsimile reprint Eng. trans. 1606).

¹⁷ Peter N. Riesenberg, Inalienability of Sovereignty in Medieval Political Thought 3 (1956).

¹⁸ Id. at 18.

¹⁹ Id. at 126.

²⁰ Jacques Krynen, Idéal du prince et pouvoir royal en France à la fin du Moyen Age (1380-1440), at 154–56 (1981).

²¹ Jacques Krynen, L’Empire du roi 304 (1993) (my translation; original Latin spelling).

²² On the Salic law, see Theodor Meron, Henry’s Wars and Shakespeare’s Laws 27–31 (1993).

²³ Krynen, supra note 20, at 155.

²⁴ Krynen, supra note 21, at 307–08.

²⁵ 1 William Stubbs, The Constitutional History of England 82–83, 159–60 (Oxford, Clarendon Press 4th ed. 1883).

²⁶ For the text of such an oath, see 2 Stubbs, supra note 25, at 108 n.3.

²⁷ Id. at 581.

²⁸ Riesenberg, supra note 17, at 126–27.

²⁹ 3 Stubbs, supra note 25, at 267 (1884).

³⁰ Id. at 268.

³¹ Id. at 93.

³² Cuttino believes that the first instance of parliamentary ratification occurred in 1365. G. P. Cuttino, English Medieval Diplomacy 23 (1985).

³³ Riesenberg, supra note 17, at 14 (original Latin spelling). See also id. at 100.

³⁴ Id. at 15.

³⁵ Id. at 123.

³⁶ W. at 104.

³⁷ Id. at 132–33.

³⁸ Sir Matthew Hale’s The Prerogatives of the King 15 (Selden Society Pub. No. 92, David E. C. Yale ed., 1976) (unpub. ca. 1640–1660).

³⁹ Id. at 15–16.

⁴⁰ Id. at 69.

⁴¹ In reaction to Henry V’s appointment of the Earl of Gloucester to be protector during his son’s minority, the peers in Parliament resolved “that the king in his lifetime nor by his last will could not without the consent of the three estates commit or grant to any person governance or rule of his land longer than he lived.” Id. at 18.

⁴² Id. at 16.

⁴³ Id. at 17 (my translation from the Latin).

A similar stratagem was adopted by General Torrijos with regard to ratification of the 1977 Panama Canal Treaties. He included a statement in the instruments of ratification that Panama, through the plebiscite provided for in Article 274 of its Constitution, had ratified the Treaties. Although wrong—important reservations, declarations and conditions had not been submitted to the plebiscite at all—this statement, like that of King John, was intended to enhance the legitimacy of the Treaties. Meron, supra note 8, at 190–91.

⁴⁴ Hale, supra note 38, at 17 (my translation). 40 Edw. 3, n. 7, 8 etc., Rotuli Parliamentorum ii, 289b, 290a (1366).

⁴⁵ Ferguson notes:

Treaties to which England was a party in the mid fifteenth century usually had their origin in a protocol. When the ambassadors deputed by the king had reached a satisfactory agreement with the representatives of the opposite party, the articles were drawn up in duplicate. Beginning with the names of the responsible parties, that is those properly accredited as envoys, the document concluded with their seals on tags, and increasingly often signatures of the envoys. Treated like a sealed chirograph except for the differences in the address, signature, and seals, the copy signed and sealed by the English was delivered to the other party while the copy the English received went technically to the king, but more likely to his advisers for scrutiny and deliberation. Having taken the decision to ratify the agreement, the king ordered the drafting, sometimes in both Latin and French and occasionally in English as well. The form the ratification took resembles that of the inspeximus. … Beginning with a clause stating that the king had read and approved the agreement, a verbatim repetition of the envoy’s protocol followed, and the document concluded with the king’s promise to ratify, the corroboration, and the date.

John Ferguson, English Diplomacy 1422–1461, at 168–69 (1972).

For an excellent collection of medieval Anglo-French treaties, especially of English royal exemplars of treaties, and of English ratifications of treaties, see 2 Pierre Chaplais, English Medieval Diplomatic Practice, Part 1: Documents and Interpretation (1982). For the English royal exemplar of a treaty of friendship concluded between Henry V and Philip, Duke of Burgundy, on December 25, 1419, see id. at 547. For the royal English exemplar of the Treaty of Troyes of May 21, 1420, see id. at 629.

⁴⁶ For the writ ordering all English sheriffs and the chancellor of the Palatinate of Lancaster to proclaim the Treaty of Troyes, see Chaplais, supra note 45, at 658.

⁴⁷ 3 Thomas Rymer, Foedera, pt. 1, at 202 (3d ed. 1740).

⁴⁸ Id., pt. 2, at 3 [hereinafter Calais text).

⁴⁹ Id. at 6–7.

⁵⁰ John Le Patourel, The Treaty of Brétigny, 1360, at 19, 20 (10 Transactions of the Royal Historical Society (5th ser.), 1960).

⁵¹ Article 39 read as follows, in part:

Et de nostre Auctorite Royal, par Deliberation, Conseil, & Consentement de plusieurs Prelas & Gens de saincte Eglise, Dux, & Contes, tant de nostre Linage, que autres, & de pluseurs, tant Pers de France, que autres Grans, Barons, Nobles, Bourgois, & autres Sages de nostre Royaume, consentons & Confermons le dit Traittie, & toutes les choses dessus dittes contenues en ycelui.

Calais text, supra note 48, at 3.

⁵² Id., Art. 36.

⁵³ See Litera Regis Franciae de Terris liberandis, & Renunciationibus faciendis, in Rymer, supra note 47, pt. 2, at 10, 12:

Et a Ce & pour Ce faire Obligons a nostre dit Frere le Roy d’Angleterre Nous, nos Hoirs, & tous noz Biens, presens & avenir, en quelque Lieu qu’il soient; Renoncans, par nostre dite Foy & Serement, a toutes Excepcions de Fraude, Decevance, de Crois prise & a prendre, & a Impetrer Dispensacion du Pape, ou d’autre, au contraire; la quelle, se empetrez estoit, nous voulons estre nulle & de nulle valeur, & que Nous ne nous en puissiens aidier: Et aux Drois, disant que Royaume ne porra estre trenche, & general Renonciacion non valoir fors en certaine maniere; & a tout ce que nous pourrions dire ou proposer, en Jugement, cu dehors, au contraire.

For a similar commitment by the King of England, see Litera Renunciationis, ex Parte Regis Angliae, in id. at 12.

⁵⁴ Panama Canal Treaty, Sept. 7, 1977, U.S.-Panama, 33 UST 491, 1280 UNTS 349 (entered into force Oct. 1, 1979, subject to reservations and understandings); Treaty concerning the Permanent Neutrality and Operation of the Panama Canal, Sept. 7, 1977, U.S.-Panama, 33 UST 1, 1161 UNTS 177 (entered into force Oct. 1, 1979, subject to amendments, conditions, reservations and understandings).

⁵⁵ Fr.-USSR-UK-U.S., 24 UST 283, 880 UNTS 115. See Andreas F. Lowenfeld, Hijacking, Freedom, and the “American Way,” 83 Mich. L. Rev. 1000, 1002 n.8 (1985) (reviewing Herbert J. Stern, Judgment in Berlin (1984)).

⁵⁶ Pierre Chaplais, Some Documents Regarding the Fulfilment and Interpretation of the Treaty of Bretigny 1361–1369, 19 Camden Miscellany 6 (1952). For the text of May 8, 1360, see Rymer, supra note 47; and for the amended Calais text, see supra note 48. The complexity of the Treaty is demonstrated by the fact that dozens of instruments (side agreements) were concluded in Calais.

⁵⁷ Chaplais, supra note 56, at 6.

⁵⁸ Id.

⁵⁹ Id. at 7–8.

⁶⁰ For the Latin text of their opinions, see id. at 61–78. For the Latin text of the questions presented to them, see id. at 58–61.

⁶¹ Cuttino, supra note 40, at 96.

⁶² 2 Roland Delachenal, Histoire de Charles V at 248 (1909).

⁶³ Maurice Keen, Diplomacy, in Henry V at 181, 184 (Gerald L. Harriss ed., 1985).

⁶⁴ 1 Le Songe du Vergier: Edité d’après le Manuscrit royal 19 C IV de la British Library, chs. cxlv, cxlvi (Marion Schnerb-Lievre ed., 1982).

⁶⁵ I discussed the Treaty of Troyes in considerable detail in Meron, supra note 22, ch. 10. The Latin and French texts of the Treaty are reprinted side by side in 4 Rymer, supra note 47, pt. 3, at 171. For the English text, which was published by Henry V in England, see id. at 179, and Chaplais, supra note 45, at 629.

⁶⁶ Keen, supra note 63, at 193.

⁶⁷ Id. at 181–99. Article 13 provided:

Also, that We mowe the more commodiously, surely, and freely Doo, Excercise, and Fulfill thes thynges aforesayd, it is Accordid that the Worthey, Grete, Nobles, and Estates of the sayd Roialme of France, as well Spiritual as Temporall, and also Citees, Notables, Comunialtees, Citezenes, and Burgeys of Townes, of the same Roialme, that be Obeyssant at this tyme to our sayd Fadir, shall maak this Othes that folowe.

First, that to Us, beryng the Facultye and Excercise of Disposition and Governance of the forsayd Comune Profit, and to cure Hestes and Commaundementz, yeu shall mekely and obediently Obey and Entend, in all manere of thynges concernyng th’Exercice of Governance of the same Roialme.

Also, that yoo Worthy Grete Nobles and y Estates of the sayd Roialme, as well Spirituell as Temporell, and also Citees, and Notables Comunialtees, and Citezins and Burgeis of the same Roialme, in all maner of thynges well and trewely shall kepe, and to here Pouer so shall Doo be keped of all other, as mych as to hem longeth, or to ony of hem, all the Thynges that be APPOYNTED or ACCORDED betwene our foresayd Fadir, and Modir and Us, withe the Counsaill of thame whome Us list for to call too.

4 Rymer, supra note 47, pt. 3, at 172 (French); id. at 179 (English).

⁶⁸ 6 Chronique du Religieux de Saint-Denys 441 (Collection de documents inedits sur l’histoire de France (ser. 1), L. Bellaguet ed., 1844).

⁶⁹ Gentili, supra note 13, at 373; Grotius, supra note 14, bk. III, ch. XX, pts. IV-V, and bk. I, ch. IV, pt. X. I discuss this question in Meron, supra note 22, at 189–90.

⁷⁰ Maurice Keen observes that in medieval legal theory “the most secure manner in which the fundamental laws of a country could be changed was by the incorporated authority of the whole people and their sovereign (personal or collective).” Keen, supra note 63, at 194–95.

⁷¹ Joycelyne Gledhill Dickinson, The Congress of Arras 1435, at 66–68 (1955).

⁷² For the significance of dishonor as a sanction for enforcement of medieval norms, see Meron, supra note 22, at 7–8. For the text of the reply of Jean de Rinel (1435), Henry VI’s French secretary, to the allegations by the French that the Treaty of Troyes was invalid, see Chaplais, supra note 56, at 648.

⁷³ For the text of the pro-French opinion given in 1435 by Dr. Luigi de Garsiis, of the University of Bologna, on the validity of the Treaty of Troyes and the Anglo-Burgundian alliance of 1419, see Chaplais, supra note 56, at 636.

As regards succession of treaties, Ayala distinguishes the case of inheritance, when treaties of the former prince would continue to be binding, from the case of acquisition of a principality through “some statute or election,” when they would not continue to be binding. Public treaties, i.e., those entered into on behalf of the state, would continue to be binding on the new prince, with the exception of a treaty causing great injury to the state and relating

to the transfer of something appurtenant to the royal crown [that] has been made without the requisite consent of the people or estates, or if the treaty derogates from the royal prerogative, for the deceased prince would not be competent to effect this; and such a treaty would be quite devoid of force right away from its inception.

Ayala, supra note 12, at 82. Gentili’s approach is similar. The first question with regard to succession of treaties, he writes, is whether the original treaty concerned matters “in which the maker of the contract could not bind even himself,” such as “Francis the First of France [who] could not make an agreement that anything should be taken from the kingdom of France.” Gentili, supra note 13, para. 676. He emphasizes the notion of the people’s participation: “if the treaties are between two peoples, the successors will always be bound, since a people is always the same; ‘princes are mortal, commonwealths immortal.’ “ Id., para. 680.

⁷⁴ Dickinson, supra note 71, at 70–72. Ferguson provides a more detailed statement of the pro-French arguments, which prevailed in Arras and led to the repudiation of the Treaty of Troyes. He cites Roman, customary, feudal and canon law, as well as fundamental laws. Under Roman law, a contract was invalid if a party to it was not competent, and there was no doubt about Charles VI’s madness. Imprisoned, possibly under duress and afraid, Charles seems to have surrendered to the inevitable, for, as Ferguson notes, “no one willingly disinherits his son in favour of his mortal enemy.”

As for customary law, because the French crown was public property, the king was not entitled to give it away. The customary law rule of the inalienability of the French crown became a principle of fundamental law. In addition, Ferguson mentions the feudal law of primogeniture and the invalidity of the contract as a result of violation by the other party. Ferguson, supra note 45, at 170–72.

⁷⁵ Ferguson, supra note 45, at 173.

⁷⁶ Krynen, supra note 21, at 308.

⁷⁷ Ayala, supra note 12, at 82. Compare Lauterpacht, supra note 7, at 163 & n.4.

⁷⁸ Ayala, supra note 12, at 82.

⁷⁹ Id. at 81.

⁸⁰ Id.

⁸¹ Gentili, supra note 13, para. 597.

⁸² Id.

⁸³ Id., para. 598.

⁸⁴ Id., para. 613.

⁸⁵ Id., para. 608.

⁸⁶ Id., para. 620.

⁸⁷ Id., para. 609.

⁸⁸ Id., para. 610.

⁸⁹ Id.

⁹⁰ Id., para. 612.

⁹¹ Id.

⁹² Grotius, supra note 14, bk. I, ch. III, pt. XII.

⁹³ Id., bk. II, ch. VI, pt. IV.

⁹⁴ Id., bk. I, ch. IV, pt. X.

⁹⁵ Id., bk. III, ch. XX, pt. V(2).

⁹⁶ Id., bk. III, ch. XX, pt. V(3), and bk. II, ch. XIV, pt. II.

⁹⁷ Id., bk. Ill, ch. XX, pt. IV.

⁹⁸ Id., pt. V(1).

⁹⁹ Id., pt. V.

¹⁰⁰ Id.

¹⁰¹ Supra note 2.

¹⁰² Gentili, supra note 13, para. 595.

¹⁰³ Id.

¹⁰⁴ Ayala, supra note 12, at 77.

¹⁰⁵ Id. at 78.

¹⁰⁶ Id.

¹⁰⁷ Id.

¹⁰⁸ Gentili, supra note 13, at 78–79.

¹⁰⁹ Grotius, supra note 14, bk. III, ch. XXII, pt. VII.

¹¹⁰ Id., ch. XXIV, pt. VI. Grotius distinguishes between treaties, which are made by the sovereign or by order of the highest authority (binding treaties), and sponsions, which are made by subordinate rulers or military commanders without a commission from the supreme ruler. Id., bk. II, ch. XV, pt. 111(1). While the supreme ruler is under no obligation whatsoever with regard to sponsions he has rejected, “if the signers claimed the power to execute agreements in the name of the state, they [personally] were bound to make restitution for the loss suffered.” Id., pt. XVI(3). A sponsion made unconditionally can become binding on the sovereign “in consequence of the knowledge of it, and of silence.” Id., pt. XVII(1). A sponsion made on the understanding that it must be approved by the sovereign cannot be validated by knowledge and silence alone. Id. See also Makoto, supra note 14, at 308, 313–14.

¹¹¹ Gentili, supra note 13, bk. III, ch. XIV.

¹¹² Id., para. 592.

¹¹³ Id., para. 599.

¹¹⁴ Id., para. 592.

¹¹⁵ Id.

¹¹⁶ Id., para. 594.

¹¹⁷ Id., para. 595.

¹¹⁸ Id., para. 596. Compare Lauterpacht, supra note 7, at 161–63.

¹¹⁹ Gentili, supra note 13, para. 596.

¹²⁰ Id.

¹²¹ Id.

¹²² Id., para. 597.

¹²³ Grotius, supra note 14, bk. III, ch. XIX, pt. IV.

¹²⁴ Id., pt. XI(1).

¹²⁵ Id.

¹²⁶ Makoto, supra note 14, at 317.

¹²⁷ Gentili, supra note 13, para. 599.

¹²⁸ Id., para. 600.

¹²⁹ Id. (quoting Seneca).

¹³⁰ Gentili, supra note 13, para. 600.

¹³¹ Id., para. 635.

¹³² Id., para. 636. Compare UN Charter Art. 51.

¹³³ Gentili, supra note 13, para. 641.

¹³⁴ Id., para. 691.

¹³⁶ Id., para. 693.

¹³⁶ Id., para. 704.

¹³⁷ Id., para. 703.

¹³⁸ Id.

¹³⁹ Id., para. 704. Compare International Law Commission, Draft Articles on State Responsibility, Arts. 31, 32 and 33, [1980] 2 Y.B. Int’l L. Comm’n, pt. 2, at 33, UN Doc. A/CN.4/SER.A/1980/Add.1(Part 2).

¹⁴⁰ Gentili, supra note 13, para. 703.

¹⁴¹ “Commerce with infidels is not forbidden; the law of God does not bid us withdraw from the world, and the law of man commands commerce among all men. … [A] general agreement concerning commerce is lawful, and also a special treaty for that purpose ….” Id., para. 658.

¹⁴² Id., para. 659.

¹⁴³ Id., para. 660.

¹⁴⁴ Id.

¹⁴⁵ Grotius, supra note 14, bk. II, ch. XV, pt. VIII.

¹⁴⁶ Id., bk. III, ch. XIX, pt. 11(2).

¹⁴⁷ Id.

¹⁴⁸ 1 Grotius, supra note 14, at 568. See also Yasuaki, supra note 6, at 204 & n.117.

¹⁴⁹ See supra note 2.