CHAP. Ratification of treaties 1 rules of the older law have now little more than historical interest, since international law at the present day recognizes that treaties become binding, not upon the signature of the diplomatic agents who have concluded them, but upon subsequent ratification of the agreement by the governments of the states parties to the treaty. Formal ratification has now become so far an accepted part of the conclusion of a binding agreement that states are now held to a knowledge of the constitutional law of the other party or parties to the treaty and have no legal ground of complaint in case the duly constituted authorities of a state repudiate the agreement signed in their behalf by their agents. The doctrine of the older writers that ratification could not be legally or morally refused has long ceased to be a correct statement of the law. Naturally a state will not lightly set aside an agreement entered into by its appointed agents, and it would soon lose standing as a responsible international person if it should give the impression of not knowing its own mind; but this is a matter of common discretion, not of law.3 A relic of the older law persists, however, in the rule that, when ratified, treaties operate retroactively, taking effect from the date of signature. This rule is open to a number of objections, arising from the fact that during the interval between the signing and the ratification of the treaty its operation is necessarily suspended, and developments may take place which cannot conveniently be governed by stipulations of doubtful future validity. Even when it is possible to adjust the public rights of the contracting government The form in which ratification is carried out by each state differs according to the respective constitutions. In the United States ratification requires the consent of a two-thirds majority of the Senate, followed by the formal approval of the President. In Great Britain the Crown in Council (i.e., the Cabinet) has the constitutional power to ratify, as it has to negotiate, a treaty; but it is becoming customary for the Cabinet to submit the treaty signed by its agents to Parliament for its approval, as was done in the case of the Treaty of Versailles. A similar custom appears to be growing in other countries, whether or not it has yet come to be part of their constitutional law. In July, 1923, the Washington treaties relating to the limitation of armaments were ratified by the French Chamber of Deputies and Senate separately. Vattel, Droit des Gens (Eng. trans.), Bk. II, § 156, marks the transition to the later doctrine. In the case of the Eliza Ann, 1 Dodson 244 (1813), Scott, Cases, 438, Sir William Scott found the practice of ratification well established. For an instance in which the United States Government sought to hold a foreign government to the obligation to ratify, see Hill, Leading American Treaties, 172-173. The position of the United States in this respect is exceptional, in that, according to the traditional interpretation of the Constitution, the authority to negotiate treaties lies with the President, while the authority to ratify treaties is exercised by him subject to the advice and consent of the Senate. See Wright, Control of American Foreign Relations, Chap. XIV. XX to the obligations of the treaty, the private rights of citizens may CHAP. require separate treatment. Thus the Constitution of the United States makes it impossible for Congress to enact legislation called for by a treaty when it would have the effect of disturbing vested rights. In the case of Haver v. Yaker1 the court held that the property of an intestate naturalized citizen should pass to his heirs under the old law, to the exclusion of certain other alien heirs whose rights were recognized by a treaty signed prior to Yaker's death, but not ratified until after his death. with Since a treaty creates bilateral obligations, it must be ratified, Ratification if at all, in the same form in which it was signed. The insertion reservations by one party of conditions or amendments of any kind would prevent the meeting of minds essential to a contractual agreement. It has, however, become customary for the constitutional authorities of states to propose amendments where the treaty as originally framed is unsatisfactory; and when approval of these is obtained from the other contracting party the modified agreement may be ratified with legal effect. Thus the amendments to the Treaty of Versailles proposed by members of the United States Senate, in the form of the "Lodge Reservations," would have required the acceptance of the other signatory powers before the ratification of the United States could have had legal effect. In such cases the negotiations may be regarded as continuing up to the time of ratification, the effect of the original signature being thereby waived. Ratification with reservations must be distinguished from ratification "with the understanding" that a specific interpretation is to be placed upon certain doubtful terms of the treaty." of the Hague Conventions A special rule was adopted at the Hague Peace Conferences of Ratification 1899 and 1907 by which the general treaties or conventions drawn up by the conferences might be signed subject to reservations entered at the time of signature. The United States, for example, entered a reservation to the Convention for the Pacific Settlement of International Disputes with the object on the one hand of avoid 19 Wallace, 32 (1869). Scott, Cases, 443. Evans, 339. The individual citizen is not presumed to know of the existence of a treaty until it has been ratified and proclaimed. It is a common practice of states to stipulate in advance, by means of such "understandings," the interpretation they place on particular clauses of the agreement. When these advance interpretations are acceptable to the other party, they remain as evidence of intent in case of subsequent disagreement, although perhaps not formally incorporated into the treaty. For example of an understanding formally incorporated, see Senate Resolution, March 4, 1923, ratifying the Halibut Fisheries Convention. CHAP. e. Acceptance under duress ing interference with the political questions of foreign states and on the other hand of protecting the Monroe Doctrine.1 The effect of these reservations is somewhat uncertain. Undoubtedly they retease the signatory state from any obligations otherwise imposed by the treaty, and it would seem that they automatically register corresponding reservations on the part of the other signatory powers as against the state making the reservations. It is not clear what is the effect as between states which have ratified a multilateral treaty in a case where the defection of one of the original parties might indirectly alter the relations between all the others. Had the Treaty of Versailles been ratified by the United States Senate subject to the amendments proposed by the party in control, the refusal on the part of the United States to assume certain obligations, notably under Article 10 of the Covenant of the League of Nations, might reasonably have been held by the other parties to have qualified their own mutual obligations in that respect.3 Under municipal law, whether the common law of Great Britain and the United States or the civil law of continental states, contracts entered into under duress are not binding. To constitute a legal agreement there must be a free offer and a free acceptance. Duress, however, is with a few exceptions limited to physical coercion or intimidation, and does not include such moral coercion as is involved in taking advantage of the financial embarrassment or other material distress of a rival. By contrast, international law, having no final court of obligatory appeal for the adjustment of contract obligations, not only overlooks the duress incident to the economic pressure that may be brought to bear by a strong state against a weaker state, but has never questioned the validity of treaties of peace entered into at the conclusion of a war which has left one party in a position to impose its will upon the other. Tables of the various reservations entered to the Hague conventions may be found in Hague Conventions, 230-259; Higgins, Hague Peace Conferences, 527-537; Malloy, Treaties, II, 2386 ff. 'See above, p. 325. In this connection the student may investigate the validity of the argument put forward in Germany that the failure of the United States to ratify the Treaty of Versailles of 1919 limited the obligations of Germany under it, in so far as these had been assumed on the understanding that the United States, being represented upon the Council of the League of Nations and upon the various commissions intrusted with the execution of the treaty, would exercise an influence consistent with the principles which formed part of the terms of the armistice. For the separate question whether the terms of the treaty were consistent with the terms of the armistice of November 11, 1918, see below, p. 489. XX Since war is a legal remedy for the redress of alleged wrongs,1 CHAP. treaties of peace are regarded as the price to be paid by the defeated party in redress of the injury which led to the war. That force and intimidation are actually present at the signing of the treaty is no more considered than is the fact that the state which has won the war may not be the one deserving redress. When Germany coerced France into signing the Treaty of Frankfort in 1871, the community of nations accepted the agreement as setting up a new legal situation, and questions relating to Alsace-Lorraine were thenceforth referred by third states to Germany precisely as if the provinces had been voluntarily ceded by France. In like manner third states raised no question as to the legal ownership of Porto Rico and the Philippines by the United States following the treaty of peace in 1898 by which Spain ceded the islands." Violence or intimidation used against the persons of the sovereign or of his diplomatic agent, as in the case of the pressure brought to bear by Napoleon against Charles IV and Prince Ferdinand in 1808, would, indeed, invalidate the agreement concluded under such duress; but such cases are now of historical interest only, being no longer possible under the modern necessity of ratification by the home government. But while the community of nations recognizes the validity of treaties of peace, signed under duress, to the extent of maintaining relations with the signatory powers on the basis of the treaty, it would seem that the rule of good faith as between the parties themselves has been regarded as applying in but a limited degree to such agreements. Had France at any time after 1871 believed herself to be in a position to repudiate the Treaty of Frankfort, it is doubtful whether third states would have cast any reproach of bad faith against her for attempting to do so. Concessions obtained by force have apparently been enjoyed so long as force could hold them; and a shift in the balance of power has brought on new wars followed by new treaties in which the concessions granted have been handed back. Should a change of conditions make it possible for a previously defeated state to recover its lost territory, there would seem to be little distinction between the open repudiation of its former treaty and a declaration of war to accomplish the same purpose, under other pretexts, without reference to the treaty. 'See below, p. 428. The fact that a purchase price was paid for the Philippines did not affect the character of the agreement at international law. Outright cession would have conferred an equally valid title. Duress in relation to good faith CHAP. XX When, therefore, it is said that "in international law force and in- The paradox of legally valid treaties of peace signed under duress appears conspicuously in the statement made by the German delegates at the time of signing the Treaty of Versailles: "Yielding to overwhelming force, but without on that account abandoning its view in regard to the unheard-of injustice of the conditions of peace, the Government of the German Republic therefore declares that it is ready to accept and sign the conditions of peace imposed by the Allied and Associated Governments. This was a clear warning that Germany merely accepted the treaty without acknowledging any obligation of good faith in the execution of it should. the military pressure be at any time removed. On the other hand, Germany appealed to its provisions as a working agreement in contesting the legality of the French occupation of the Ruhr in 1923.* It is scarcely necessary to add that whether the treaty is entered into under duress or is a purely voluntary bargain, the presence of fraud or misrepresentation in the making of the contract would render it invalid. This rule, deducible from the general principle of good faith, obviously relates, however, to the case of fraud as to the subject-matter of the contract, not to fraud in respect to the motives leading to the conclusion of the contract. For example, in the negotiations preceding the conclusion of the Treaty of Portsmouth, in 1905, both the Russian and Japanese delegates made every effort to conceal facts tending to indicate domestic political conditions requiring a termination of hostilities irrespective of the fortunes of war.5 1 Hall, International Law, § 108. Compare, however, the position taken by Lawrence, that the fact that treaties of peace "were extorted by force is no good plea for declining to be bound by them."' Principles of International Law, 134. Baker, Woodrow Wilson and World Settlement, II, 519. Compare the position taken by Peru and Bolivia in respect to the Treaty of Ancón of October 20, 1883, in accordance with which the provinces of Tacna and Arica were left in the possession of Chili subject to a subsequent plebiscite. J. B. Scott, "The Tacna-Arica Arbitration," Am. Journal, XVII (1923), 82. The rule of international law in this respect does not differ from the rule of the common or the civil law. |