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THE OBLIGATION TO RATIFY TREATIES
IS RATIFICATION NECESSARY FOR THE VALIDITY OF A TREATY!
ONE of the earliest examples of a sort of ratification is found in the treaty between Justinian and the Persian King, Chosroes, in 561 A. D. In this case the sovereigns agreed to accept that which their plenipotentiaries had promised and agreed upon." The French-Swiss alliance of May 28, 1777, was sanctioned by solemn oaths.” It was the custom in earlier times to take hostages to insure ratification; this Grotius believed entirely proper. The oath gave way to a mere act or declaration of ratification.
Grotius likened a plenipotentiary to a mandatory, holding that all agreements reached by him were binding upon the sovereign from the time of signature, unless the secret instructions were transcended.” Thus he regarded ratification as a mere form, not affecting the validity of the treaty. Likewise Martens, writing in 1789 at the time of the adoption of the Constitution of the United States, believed that if a mandatory had not exceeded his secret instructions, all that he agreed to was binding upon the state represented, and that the law of nations required no particular ratification (ratification particulière).” Pufendorf regarded treaties valid from signature and thought ratification superfluous."
It should be remembered that the older writers were accustomed to absolute sovereign relationship and wrote before the period when constitutional bodies developed and took away from the kings and heads of states a part of the supreme power. Among the powers taken away from the sovereigns or heads of states in many cases, has been certain powers in regard to treaty-making. Such a division of the treaty-power occurred in 1789, when the Constitution of the United States vested that power in the President and the Senate. Certainly
1 Du Mont, Supplement au Corps Universale, II, 197. 2 Wegmann, Die Ratifikation von Staatsvertraegen, p. 3. 8 De Jure Belli ac Pacis, III, 20, 52. 4 Droit des Gens, Art. 48.
5 De Jure Natura et Gentium, lib. III, cap. IX, art. 2.
after its adoption it could not forcefully be maintained that ratification was unnecessary for the validity of treaties to which the United States was a party. No authority does so hold, yet there is considerable difference of opinion as to the extent of the obligation to ratify. The German writer, Wegmann, holds that ratification in general is somewhat superflạous (etwas ueberflussiges) and inconsequential (nichtssagendes). For most leading authorities, however, ratification is necessary for the validity of treaties. Usage has come to require ratification in case of all treaties.
The question of the necessity for ratification is now hardly of practical interest, says Despagnet, since “qu'il n'y a peut-être plus un seul traité qui ne contienne de nos jours la reserve de la ratification.” He makes an exception, however, of conventions between chiefs of state who themselves have full treaty power. “The necessity of ratification," says Hall, “may be taken as practically undisputed, and the reason for the requirement is one which prevents it from being a mere formality.”? An even stronger statement is made by Pradier-Fodéré, who says that “Aucune traité n'est definitif avant d'avoir été ratifié."'8
The view that ratification is an essential and necessary step in the making of a valid treaty is confirmed and strengthened by a consideration of partial ratification, of which several instances are recorded. Citing the Act of Brussels of July 2, 1890, which was only partially ratified by France with the assent of the other contractants, Despagnet says that ratification should be integral and without modification or reserve, unless the restrictions are admitted by all the contractants. In his report to the plenary session of the London Naval Conference of 1909, Professor Louis Renault said, regarding the rules agreed upon by the Conference commissions for the regulation of maritime warfare:
Les règles contenues dans cette Déclaration touchent à des points très important et très different. Elles n'ont pas été acceptées avec
6 Staatsvertraege, p. 4, note 9.
le même empressement par toutes les Délégations; des concessions ont été faites sur un point en vue de concessions obtenues sur un autre L'ensemble a été, tout balancé, reconnu satisfaisant. Une attente légitime serait trompée si une puissance pouvait faire des réserves à propos d'une règle à laquelle une autre puissance attache une importance particulière.10
In such international treaties as the Brussels Treaty of 1890, The Hague Treaties of 1899 and 1907, and the Versailles Treaty of 1919, the general understanding is that they are concluded ad referendum, and must be approved and ratified by the several governments concerned as is constitutionally provided. Particularly is this true, because legislation is usually necessary to carry treaties of such broad scope into effect.
The attitude adopted by the Government of the United States is expressed clearly and unequivocally by President Washington in a special message to Congress, September 17, 1789, in which he says:
It is said to be the general understanding and practice of nations, as a check on the mistakes and indiscretions of ministers or commissioners, not to consider any treaty, negotiated and signed by such officers, as final and conclusive, until ratified by the sovereign or gov. ernment from whom they derive their powers. This practice has been adopted by the United States respecting their treaties with European nations, and I am inclined to think it would be advisable to observe it in the conduct of our treaties with the Indians.11
Regarding the Jay Treaty of 1795, President Washington further expressed himself on the treaty-making power:
The nature of foreign negotiations requires caution, and their success must often depend on secrecy; and even when brought to a conclusion a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely impolitic, for this might have a pernicious influence on future negotiations, or produce immediate inconveniences, perhaps danger and mischief to other persons. The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the President, with the advice and consent of the Senate,
10 Proceedings of the International Naval Conference, British State Papers, Miscellaneous No. 5 (1909), p. 375.
11 Quoted by Wharton, International Law Digest, II, p. 6.
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the principle on which that body was formed confining it to a small number of members. . . . The course which the debate has taken on the resolution of the House leads to some observations on the mode of making treaties under the Constitution of the United States. Having been a member of the General Convention, and knowing the principles on which the Constitution was formed, I have entertained but one opinion upon this subject; and from the first establishment of the government to this moment, my conduct has exemplified that opinion. That the power of making treaties is exclusively vested in the President, by and with the advice and consent of the Senate, provided two-thirds of the senators concur.”
On May 6, 1794, Mr. Randolph, Secretary of State, wrote to President Washington as follows:
By the Constitution of the United States . . . the President has the power to make treaties “by and with the advice and consent of the Senate, ... provided two-thirds. of the Senators present concur.
The Secretary of the Treasury and the Secretary of War being of opinion that it was constitutional and expedient to empower Mr. Jay to conclude a treaty of commerce with Great Britain, his powers were drawn conformably with this idea. Their reasons for so holding they committed to writing; and the same course was pursued by Mr. Edmund Randolph, then Secretary of State, who entertained different sentiments on the subject. Mr. Randolph took the view that to permit a treaty of commerce to be signed by Mr. Jay and transmitted to the United States for ratification would be “to abridge the power of the Senate to judge of its merits” since, “according to the rules of good faith, a treaty which is stipulated to be ratified ought to be so, unless, the conduct of the minister be disavowed and punished”; and that, if Mr. Jay was permitted to sign a treaty, no form of expression can be devised to be inserted in it which will not be tantamount to a stipulation to ratify or leave the matter as much at large as if he had no such power.”
Regarding the Colombia Treaty of 1825, Secretary of State Clay wrote to Mr. Addington, British Minister at Washington, as follows:
The Government of His Britannic Majesty is well acquainted with the provision of the Constitution of the United States by which the Senate is a component part of the treaty-making power; and that the consent and advice of that branch of Congress are indispensable in the formation of all treaties. According to the practice of this Government, the Senate is not ordinarily consulted in the initiatory state of a negotiation, but its consent and advice are only invoked after a treaty is concluded, under the direction of the President, and sub. mitted to its consideration. Each of the two branches of the treatymaking authority is independent of the other, whilst both are responsible to the people, the common source of their respective powers. 14
12 Richardson, Messages and Papers, 1, pp. 194-195. 186 MS. Dom. Let., 251; quoted by Moore, Digest, V, p. 193.
TREATY-MAKING POWERS CLASSIFIED
The constitutions or fundamental laws of various states readily suggest the grouping of treaty powers under three heads: (A) Where the head of the state may make treaties without any constitutional limitation; (B) where such limitation is made for only certain types of treaties, as those ceding territory, involving financial obligation, affecting private rights, etc.; (C) where all treaties require approval of a constitutional body other than the executive who makes them.
A. In this class may be placed Japan, and Russia as she was before the fall of the monarchy. The Emperor of Japan has full treaty power.
B. A majority of the leading Powers fall into this class. It in. cludes England, France, Italy, Belgium, the old Austria-Hungary, the old Germany, and several of the smaller Powers.
a. England.—While it is true that theoretically the Crown possesses the prerogative in regard to treaties, and conceivably might make any treaty without the approval of Parliament, yet, in the practical working of the British governmental system, the Government is so responsible to the will of Parliament that no Premier would allow a treaty to be made which was strongly opposed by that body; moreover, when legislative enactment must give force and effect to a treaty, it is now generally understood that Parliament must give its approval.
The English treaty power is described by Ridges as follows:
In England the treaty-making power is vested in the Crown, acting upon the advice of its responsible councillors, viz., the Cabinet, or, in matters of less importance the Secretary of State for Foreign Affairs....
It seems to be generally conceded, however, that the Crown may make a treaty ceding territory without the consent of Parliament;
14 American State Papers, Foreign Relations, V, p. 783.