International Law. A Treatise Volume I Part 69

Nos. 1100-1119--Merignhac, II. pp. 652-666--Nys, III. pp.

28-36--Rivier, II. -- 50--Calvo, III. ---- 1627-1636--Fiore, II. No.

994, and Code, No. 750--Martens, I. ---- 105-108--Wicquefort, "L'Amba.s.sadeur et ses fonctions" (1680), II. Section XV.--Jellinek, "Die rechtliche Natur der Staatenvertrage" (1880), pp. 53-56--Nippold, op. cit. pp. 123-125--Wegmann, "Die Ratifikation von Staatsvertragen" (1892).

[Sidenote: Conception and Function of Ratification.]

-- 510. Ratification is the term for the final confirmation given by the parties to an international treaty concluded by their representatives.

Although a treaty is concluded as soon as the mutual consent is manifest from acts of the duly authorised representatives, its binding force is as a rule suspended till ratification is given. The function of ratification is, therefore, to make the treaty binding, and, if it is refused, the treaty falls to the ground in consequence. As long as ratification is not given, the treaty is, although concluded, not perfect. Many writers[869] maintain that, as a treaty is not binding without ratification, it is the latter which really contains the mutual consent and really concludes the treaty. Before ratification, they maintain, there is no treaty concluded, but a mere mutual proposal agreed to to conclude a treaty. But this opinion does not accord with the real facts.[870] For the representatives are authorised and intend to conclude a treaty by their signatures. The contracting States have always taken the standpoint that a treaty is concluded as soon as their mutual consent is clearly apparent. They have always made a distinction between their consent given by representatives and their ratification to be given afterwards, they have never dreamt of confounding the two and considering their ratification their consent. It is for that reason that a treaty cannot be ratified in part, that no alterations of the treaty are possible through the act of ratification, that a treaty may be tacitly ratified by its execution, that a treaty always is dated from the day when it was duly signed by the representatives and not from the day of its ratification, that there is no essential difference between such treaties as want and such as do not want ratification.

[Footnote 869: See, for instance, Ullmann, -- 78; Jellinek, p. 55; Nippold, p. 123; Wegmann, p. 11.]

[Footnote 870: The matter is very ably discussed by Rivier, II. pp 74-76.]

[Sidenote: Rationale for the Inst.i.tution of Ratification.]

-- 511. The rationale for the inst.i.tution of ratification is another argument for the contention that the conclusion of the treaty by the representatives is to be distinguished from the confirmation given by the respective States through ratification. The reason is that States want to have an opportunity of re-examining not the single stipulations, but the whole effect of the treaty upon their interests. These interests may be of various kinds. They may undergo a change immediately after the signing of the treaty by the representatives. They may appear to public opinion in a different light from that in which they appear to the Governments, so that the latter want to reconsider the matter. Another reason is that treaties on many important matters are, according to the Const.i.tutional Law of most States, not valid without some kind of consent of Parliaments. Governments must therefore have an opportunity of withdrawing from a treaty in case Parliaments refuse their recognition. These two reasons have made, and still make, the inst.i.tution of ratification a necessity for International Law.

[Sidenote: Ratification regularly, but not absolutely, necessary.]

-- 512. But ratification, although necessary in principle, is not always essential. Although it is now a universally recognised customary rule of International Law that treaties are regularly in need of ratification, even if the latter was not expressly stipulated, there are exceptions to the rule. For treaties concluded by such State functionaries[871] as have within certain narrow limits, _ipso facto_ by their office, the power to exercise the treaty-making competence of their State do not want ratification, but are binding at once when they are concluded, provided the respective functionaries have not exceeded their powers.

Further, treaties concluded by heads of States in person do not want ratification provided that they do not concern matters in regard to which const.i.tutional restrictions[872] are imposed upon heads of States.

And, lastly, it may happen that the contracting parties stipulate expressly, for the sake of a speedy execution of a treaty, that it shall be binding at once without ratifications being necessary. Thus, the Treaty of London of July 15, 1840, between Great Britain, Austria, Russia, Prussia, and Turkey concerning the pacification of the Turko-Egyptian conflict was accompanied by a secret protocol,[873]

signed by the representatives of the parties, according to which the treaty was at once, without being ratified, to be executed. For the Powers were, on account of the victories of Mehemet Ali, very anxious to settle the conflict as quickly as possible. But it must be emphasised that renunciation of ratification is valid only if given by representatives duly authorised to make such renunciation. If the representatives have not received a special authorisation to dispense with ratification, then renunciation is not binding upon the States which they represent.

[Footnote 871: See above, -- 496.]

[Footnote 872: See above, -- 497.]

[Footnote 873: See Martens, N.R.G. I. p. 163.]

[Sidenote: Length of Time for Ratification.]

-- 513. No rule of International Law prescribes the length of time within which ratification must be given or refused. If such length of time is not specially stipulated by the contracting parties in the very treaty, a reasonable length of time must be presumed as mutually granted.

Without doubt, a refusal to ratify must be presumed from the lapse of an unreasonable time without ratification having been made. In most cases, however, treaties which are in need of ratification contain nowadays a clause stipulating the reservation of ratification, and at the same time a length of time within which ratification should take place.

[Sidenote: Refusal of Ratification.]

-- 514. The question now requires attention whether ratification can be refused on just grounds only or according to discretion. Formerly[874]

it was maintained that ratification could not be refused in case the representatives had not exceeded their powers or violated their secret instructions. But nowadays there is probably no publicist who maintains that a State is in any case _legally_[875] bound not to refuse ratification. Yet many insist that a State is, except for just reasons, in principle _morally_ bound not to refuse ratification. I cannot see, however, the value of such a moral in contradistinction to a legal duty.

The fact upon which everybody agrees is that International Law does in no case impose a duty of ratification upon a contracting party. A State refusing ratification will always have reasons for such line of action which appear just to itself, although they may be unjust in the eyes of others. In practice, ratification is given or withheld at discretion.

But in the majority of cases, of course, ratification is not refused. A State which often and apparently wantonly refused ratification of treaties would lose all credit in international negotiations and would soon feel the consequences. On the other hand, it is impossible to lay down hard-and-fast rules respecting just and unjust causes of refusal of ratification. The interests at stake are so various, and the circ.u.mstances which must influence a State are so imponderable, that it must be left to the discretion of every State to decide the question for itself. Numerous examples of important treaties which have not found ratification can be given. It suffices to mention the Hay-Pauncefote Treaty between the United States and Great Britain regarding the proposed Nicaragua Ca.n.a.l, signed on February 5, 1900, which was ratified with modifications by the Senate of the United States, this being equivalent to refusal of ratification. (See below, -- 517.)

[Footnote 874: See Grotius, II. c. 11, -- 12; Bynkershoek, "Quaestiones juris publici," II. 7; Wicquefort, "L'Amba.s.sadeur," II. 15; Vattel, II.

-- 156; G. F. von Martens, -- 48.]

[Footnote 875: This must be maintained in spite of Wegmann's (p. 32) a.s.sertion that a customary rule of the Law of Nations has to be recognised that ratification can not regularly be refused. The hair-splitting scholasticism of this writer is ill.u.s.trated by a comparison between his customary rule for the non-refusal of ratification as arbitrarily constructed by himself, and the opinion which he (p. 11) emphatically defends that a treaty is concluded only by ratification.]

[Sidenote: Form of Ratification.]

-- 515. No rule of International Law exists which prescribes a necessary form of ratification. Ratification can therefore be given as well tacitly as expressly. Tacit ratification takes place when a State begins the execution of a treaty without expressly ratifying it. Further, ratification may be given orally or in writing, although I am not aware of any case in which ratification was given orally. For it is usual for ratification to take the form of a doc.u.ment duly signed by the heads of the States concerned and their Secretaries for Foreign Affairs. It is usual to draft as many doc.u.ments as there are parties to the convention, and to exchange these doc.u.ments between the parties. Sometimes the whole of the treaty is recited _verbatim_ in the ratifying doc.u.ments, but sometimes only the t.i.tle, preamble, and date of the treaty, and the names of the signatory representatives are cited. As ratification is the necessary confirmation only of an already existing treaty, the essential requirement in a ratifying doc.u.ment is merely that it refer clearly and unmistakably to the treaty to be ratified. The citation of t.i.tle, preamble, date, and names of the representatives is, therefore, quite sufficient to satisfy that requirement, and I cannot agree with those writers who maintain that the whole of the treaty ought to be recited _verbatim_.

[Sidenote: Ratification by whom effected.]

-- 516. Ratification is effected by those organs which exercise the treaty-making power of the States. These organs are regularly the heads of the States, but they can, according to the Munic.i.p.al Law of some States, delegate the power of ratification for some parts of the globe to other representatives. Thus, the Viceroy of India is empowered to ratify treaties with certain Asiatic monarchs in the name of the King of Great Britain and Emperor of India, and the Governor-General of Turkestan has a similar power for the Emperor of Russia.

In case the head of a State ratifies a treaty, although the necessary const.i.tutional requirements have not been previously fulfilled, as, for instance, in the case in which a treaty has not received the necessary approval from the Parliament of the said State, the question arises whether such ratification is valid or null and void. Many writers[876]

maintain that such ratification is nevertheless valid. But this opinion is not correct, because it is clearly evident that in such a case the head of the State has exceeded his powers, and that, therefore, the State concerned cannot be held to be bound by the treaty.[877] The conflict between the United States and France in 1831, frequently quoted in support of the opinion that such ratification is valid, is not in point. It is true that the United States insisted on payment of the indemnity stipulated by a treaty which had been ratified by the King of France without having received the necessary approval of the French Parliament, but the United States did not maintain that the ratification was valid; she insisted upon payment because the French Government had admitted that such indemnity was due to her.[878]

[Footnote 876: See, for instance, Martens, -- 107, and Rivier, II. p.

85.]

[Footnote 877: See above, -- 497, and Nippold, p. 147.]

[Footnote 878: See Wharton, II. -- 131A, p. 20.]

[Sidenote: Ratification can not be partial and conditional.]

-- 517. It follows from the nature of ratification as a necessary confirmation of a treaty already concluded that ratification must be either given or refused, no conditional or partial ratification being possible. That occasionally a State tries to modify a treaty in ratifying it cannot be denied, yet conditional ratification is no ratification at all, but equivalent to refusal of ratification. Nothing, of course, prevents the other contracting party from entering into fresh negotiations in regard to such modifications; but it must be emphasised that such negotiations are negotiations for a new treaty,[879] the old treaty having become null and void through its conditional ratification.

On the other hand, no obligation exists for such party to enter into fresh negotiations, it being a fact that conditional ratification is identical with refusal of ratification, whereby the treaty falls to the ground. Thus, for instance, when the United States Senate on December 20, 1900, in consenting[880] to the ratification of the Hay-Pauncefote Treaty as regards the Nicaragua Ca.n.a.l, added modifying amendments, Great Britain did not accept the amendments and considered the treaty fallen to the ground.

[Footnote 879: This is the correct explanation of the practice on the part of States, which sometimes prevails, of acquiescing, after some hesitation, in alterations proposed by a party to a treaty in ratifying it; see examples in Pradier-Fodere, II. No. 1104, and Calvo, III. -- 1630.]

[Footnote 880: It is of importance to emphasise that the United States'

Senate, in proposing an amendment to a treaty before its ratification, does not, strictly speaking, ratify such treaty conditionally, since it is the President, and not the Senate, who possesses the power of granting or refusing ratification; see Willoughby, "The Const.i.tutional Law of the United States" (1910), I. p. 462, note 14. The President, however, according to article 2 of the Const.i.tution, cannot grant ratification without the consent of the Senate, and the proposal of an amendment to a treaty on the part of the Senate, therefore, comprises, indirectly, the proposal of a new treaty.]

Quite particular is the case of a treaty to which a greater number of States are parties and which is only partially ratified by one of the contracting parties. Thus France, in ratifying the General Act of the Brussels Anti-Slavery Conference of July 2, 1890, excepted from ratification articles 21 to 23 and 42 to 61, and the Powers have acquiesced in this partial ratification, so that France is not bound by these twenty-three articles.[881]

[Footnote 881: See Martens, N.R.G. 2nd Ser. XXII. (1897), p. 260.]

But it must be emphasised that ratification is only then partial and conditional if one or more stipulations of the treaty which has been signed without reservation are exempted from ratification, or if an amending clause is added to the treaty during the process of ratification. It is therefore quite legitimate for a party who has signed a treaty with certain reservations as regards certain articles[882] to ratify the approved articles only, and it would be incorrect to speak in this case of a partial ratification.

[Footnote 882: See below, -- 519.]

Again, it is quite legitimate--and one ought not in that case to speak of conditional ratification--for a contracting party who wants to secure the interpretation of certain terms and clauses of a treaty to grant ratification with the understanding only that such terms and clauses should be interpreted in such and such a way. Thus when, in 1911, opposition arose in Great Britain to the ratification of the Declaration of London on account of the fact that the meaning of certain terms was ambiguous and that the wording of certain clauses did not agree with the interpretation given to them by the Report of the Drafting Committee, the British Government declared that they would only ratify with the understanding that the interpretation contained in the Report should be considered as binding and that the ambiguous terms concerned should have a determinate meaning. In such cases ratification does not introduce an amendment or an alteration, but only fixes the meaning of otherwise doubtful terms and clauses of the treaty.

[Sidenote: Effect of Ratification.]

-- 518. The effect of ratification is the binding force of the treaty.

But the question arises whether the effect of ratification is retroactive, so that a treaty appears to be binding from the date when it is duly signed by the representatives. No unanimity exists among publicists as regards this question. As in all important cases treaties themselves stipulate the date from which they are to take effect, the question is chiefly of theoretical interest. The fact that ratification imparts the binding force to a treaty seems to indicate that ratification has regularly no retroactive effect. Different, however, is of course the case in which the contrary is expressly stipulated in the very treaty, and, again, the case when a treaty contains such stipulations as shall at once be executed, without waiting for the necessary ratification. Be this as it may, ratification makes a treaty binding only if the original consent was not given in error or under a delusion.[883] If, however, the ratifying State discovers such error or delusion and ratifies the treaty nevertheless, such ratification makes the treaty binding. And the same is valid as regards a ratification given to a treaty although the ratifying State knows that its representatives have exceeded their powers by concluding the treaty.

[Footnote 883: See above, -- 500.]

VI

EFFECT OF TREATIES

Hall, -- 114--Lawrence, -- 134--Halleck, I. pp. 279-281--Taylor, ---- 370-373--Wharton, II. -- 137--Wheaton, -- 266--Bluntschli, ---- 415-416--Hartmann, -- 49--Heffter, -- 94--Bonfils, Nos.

845-848--Despagnet, Nos. 447-448--Pradier-Fodere, II. Nos.

1151-1155--Merignhac, II. pp. 667-672--Rivier, II. pp.