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national law have fallen into the mistake of applying to modern so-called guarantees the principles which earlier writers laid down as applicable to guarantees proper.
A guarantee is defined by writers on English law as “ a collateral engagement to answer for the debt, default, or miscarriage of another person.” It, therefore, implies or presupposes an existing obligation between two or more persons to which it is subsidiary, and the person who gives it only incurs a liability conditional on the non-fulfilment of the principal obligation. The guarantor is in the position of a surety. He undertakes to be responsible for the performance of a duty by another person.
It might be expected that a treaty of guarantee would in the region of international law correspond to a contract of guarantee in the sphere of common law. It would then be defined as a treaty by which one State undertook to be responsible to another State for the due performance of some duty by a third State. This is the view of a treaty of guarantee taken by the earlier writers. The guarantee was a means of securing the due performance of a treaty. It succeeded to the oath and the hostage—for though the oath continued in use until 1777, and hostages were given as late as the peace of Aix-la-Chapelle in I748, yet in the 17th and 18th centuries they had in many cases been supplanted by a guarantee. An excellent example of a strict guarantee is that connected with the Treaty of Teschen, negotiated in the yeair 1779, to settle the claims of the King of Prussia and Maria Theresa in regard to the Bavarian succession. It was deemed advisable by both parties that the fulfilment of the treaty should be secured by the guarantee of Russia and France, to whose good ofiices the treaty was due, and the 16th Artic1e* states that—“ Leurs dites Majestés sont requises par toutes les parties contractantes et interessées, de se charger aussi de la garantie du présent
' Martens, Recueil. Vol. 11., pp. 667, 683.
Traité.” France and Russia accordingly entered into an “Acte de Garantie,” which, after reciting the request made by the contracting parties, enacted that—“ Sa. Maj. l’Impératrice de toutes les Russies et Sa Maj. le Roi Très Chrétien garantissent le Traité de paix."
This was a strict guarantee. France and Russia, the guarantors, enter into an engagement collateral to another, by which they bind themselves to be responsible for the fulfilment of the principal obligation by the parties to it. The guarantee was a double one, the observance of the treaty by the King of Prussia being guaranteed to Maria Theresa, and vice versâ.
This is the kind of guarantee treated of by Vattel. After discussing the sacred nature of treaties, he proceeds to consider the various means adopted to secure their due observance, and chiefamong these he places “la garantie.”*
“Une malheureuse expérience n’ayant que trop appris aux hommes que la foi des traités si sainte et si sacrée, n’est pas toujours un sûr garant de leur observation, on a cherché des sûretés contre la perfidie, des moyens dont l’efficacité ne dépendit pas de la bonne foi des contractants. La garantie est un de ces moyens. Quand ceux qui font un traité de paix, ou tout autre traité, ne sont point absolument tranquilles sur son observation, ils recherchent la garantie d'un souverain puissant. Le garant promit de maintenir les conditions du traité, d'en procurer l'observation.”
He then defines “ la garantie ” as“ une espèce de traité par lequel on promet assistance et secours à quelqu’un, au cas qu’il en ait besoin pour contraindre un infidèle à remplir ses engagements.”
He then points out that the guarantor has no right to interfere in the execution of the treaty unless his aid is
Q Droit des Gens. By Pinheiro-Ferreira and Pradier Fodéré. Paris, I863.
invoked, and that he is not bound to procure the performance of it, should it militate against the just rights of third parties.
Vattel’s view of the nature of a guarantee coincides with that of Puffendorf, who preceded, and of Kltiber, who lived after him.
The former, in his work published in 1672,* says :—
“Quelquefois aussi d’autres Princes ou Etats, surtout ceux qui ont été Médiateurs de la Paix, se rendent Garants de son observation de part et d’autre, par une esp'ece de Cautionnement, qui emporte un Traité d’Alliance, en vertu duquel ils s’engagent a donner du secours au premier qui sera insulté par l’autre, contre les articles et les conditions de la paix.”
The latter, in regard to guarantees, says :——“ L’expression de garantie dans le sens général comprend tous les traités dont le but est d’assurer l’exécution d’un autre traité.”
Coming to modern times and modern writers, it will be found thatgan entirely new view is taken by text-writers as to the nature of “ ATreaty of Guarantee.”
“ The convention of guaranty,” says \Vheaton,'l' “is one of the most usual international contracts. It is an engagement by which one State promises to aid another where it is interrupted or threatened to be disturbed in the peaceable enjoyment of its rights by a third Power.”
Such a treaty is in no sense a guarantee; it is a treaty of alliance pure and simple. Wheaton goes on, however, to say :—“The guaranty may also be contained in a distinct and separate convention, or included among the stipulations annexed to the principal treaty intended to be guaranteed,” showing that he was aware of the nature of a strict guarantee. His treatment of the subjectis unsatis
"‘ Droit de la Nature et des Gens. Liv. VIII., Ch.viii., § 7. [Leyden, 1759.] 1- Wheaton’: "International Law," edited by A. C. Boyd. London: and
English edition. 1880. §277.
factory and confused, owing to his not recognising the distinction between guarantees and treaties of alliance in the
form of guarantees. The use of the word guarantee will not make that a guarantee which otherwise possesses none
of the essential elements of such a treaty.
The principles laid down by VVheaton are to be found in Vattel, but Vattel was careful to draw the following distinction :—,
“ _Ie ferai observer 5. cette occasion que dans l’usage ordinaire on prend souvent le terme de gamntic dans un sens un peu différent du sens précis que nous avons donné a ce mot. La plupart des puissances de d’Europe garantirent l’acte par lequel Charles VI. avait réglé la succession aux Etats de sa Maison : les souverains se garantissent quelque fois réciproquement leurs Etats respectifs. Nous appellerions plut6t cela des traités d’alliance pour maintenir cette loi de succession, pour soutenir la possession de ces Etats.”
Halleck* defines a guarantee in terms similar to those used by Wheaton:—“Treaties of guarantee and of surety,” he says, “ are engageme'nts by which a State promises to aid another against any interruption of certain specified rights, such as boundaries, territory, constitution or form of government.”
Abdy gives a definition not less confused :-—-“ Guarantees,” he says, are “ additional agreements (jmcfa rzccessoria) entered into by some powerful State or States for the purpose of maintaining the integrity of a province or territory, the political existence or sovereignty of a State, the right of succession to a throne, or the terms and conditions of a treaty of peace—in fact, being in themselves a kind of treaty in which help is promised in the shape of money or arms to some one or more contracting powers." 1‘ This is not so much a definition of a guarantee as a description of various modern treaties of alliance; but in the words “ additional agreements ” Qfiacta acccssoria) there is a reference to the guarantee proper. The idea that a guarantee must be collateral to some other obligation is retained, but the object of a guarantee——i.e., to secure the fulfilment of such obligation—is entirely lost sight of. To take the example of the “ guarantee” of the neutrality of Luxembourg, to which Dr. Abdy refers, to what other treaty or agreement is that guarantee “ additional ?" Was not the treaty ofguarantee an independent convention, and is it anything more than a mutual alliance between the parties to it, to prevent any one of themselves, or any outside party, from violating the neutrality to which reference is made P
* “ International Law," edited by Sir Sherston Baker, Bart. London. 1878.
I., p. 235. 1 Kent’s “ Commentary on International Law,” edited by J. T. Abdy, LL.D. 2nd edition, revised. London and Cambridge. 1878. p. :62.
Sir Robert Phillimore correc-tly classes guarantees, as one of “the means which have been resorted to, for securing the performance of treaties,” but in his division of guarantees, he departs altogether from this view. He divides guarantees into
1. Guarantees “ that a nation shall maintain a particular stat-us towards all other powers, e.g., of neutrality, which is a condition of the newly erected Kingdom of Belgium.”
2. Guarantees “that a particular State, shall do a particular act, e.g., discharge a debt, or resign a territory.”
3. Guarantees “ to defend the particular constitution, or territory, or particular rights, of a country, contra quascunque.”
4. Guarantees “to defend the particular constitution of a State generally against all attacks which may assail it.”
Strict guarantees would come under the second class, but all the other classes are special treaties of alliance. The example he gives of his second class is one of the only two which exist. Belgium and Luxembourg are expressly bound to observe a state of neutrality towards all other