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and that treaties concluding peace or declaring war are also valid without Parliamentary sanction. In either of the latter cases, however, the necessity for the consent of Parliament would be indirectly supplied where the terms of peace or the declaration of war necessitated a parliamentary grant of money, and in the case of a disgraceful peace being concluded without parliamentary sanction the royal prerogative would probably not shield the responsible minister from an impeachment of the Commons. Conventions relating to commerce requiro parliamentary sanction (semble) when they impose taxation upon, or interfere with, the private rights of a subject.15
b. The French constitutional law on the relation of the public powers, July 16, 1875, provides :
ART. 8.—The President of the Republic shall negotiate and ratify treaties. He shall give information regarding them to the Chambers as soon as the interests and safety of the state permit.
Treaties of peace and of commerce, treaties which involve the finances of the state, those relating to the person and property of French citizens in foreign countries, shall be ratified only after having been voted by the two Chambers.
No cession, exchange, or annexation of territory shall take place except by virtue of a law.16
c. The Belgian Constitution of February 7, 1831, provides :
ART. 68.—The King commands the forces both by land and sea, declares war, makes treaties of peace, of alliance, and of commerce. He shall give information to the two Houses of these acts as soon as the interests and safety of the state permit, adding thereto suitable comment.
Treaties of commerce, and treaties which may burden the state, or bind Belgians individually, shall take effect only after having received the approval of the two Houses.
No cession, exchange, or addition of territory shall take place except by virtue of a law.17
d. The Italian Constitution of March 4, 1848, provides :
ART. 5.—To the King alone belongs the executive power. He is the supreme head of the state; ... makes treaties of peace, alliances, commerce, and other treaties, communicating them to the Houses as
15 Constitutional Law of England, p. 534, 2d ed. (1915).
soon as the interests and security of the state permit, accompanying such notice with opportune explanations; treaties involving financial obligations or alteration of the territory of the state shall not take effect until after they have received the approval of the Houses. 18
e. The Austro-Hungarian treaty law of December 21, 1867, provides:
Art. 6.-The Emperor shall conclude political treaties.
The consent of the Reichsrat is necessary for the validity of any treaties of commerce or political treaties which impose obligations upon the Empire, upon any part thereof, or upon any of its citizens.
This law was modified and supplemented by the following law adopted upon the union with Hungary:
SECTION 1.—The following affairs are declared common to Austria and Hungary :
a. Foreign affairs, including ... measures relating to international treaties, reserving the right of the representative bodies of both parts of the Empire (Reichsrat and Hungarian Diet) to approve such treaties, in so far as such approval is required by the Constitution.18
f. The German Constitution of April 16, 1871, provides :
Art. II.-To the King of Prussia shall belong the presidency of the Confederation, and he shall have the title of German Emperor. It shall be the duty of the Emperor to ... enter into alliances and other treaties with foreign countries. ... So far as treaties with foreign countries relate to matters which, according to Art. 4, are to be regulated by imperial legislation, the consent of the Bundesrat shall be required for their conclusion, and the approval of the Reichstag shall be necessary to render them valid. 20
C. In this group are the United States, Brazil and Portugal. The Constitution of the United States has been discussed above.
b. The Brazilian Constitution of February 24, 1891, provides :
To the President of the Republic shall belong the exclusive right: To enter into negotiations with other countries, to conclude agree
18 Dodd, Modern Constitutions, Vol. II, p. 5
ments, conventions, and treaties, always referring such treaties and conventions to the Congress. ... 21
c. After giving the King power to make treaties, the Portuguese constitutional charter of July 5, 1852, modifies the old charter of 1826 by requiring that:
Every treaty, concordat, or convention which the government may conclude with any foreign Power shall, before ratification, be approved by the Cortes in secret session.22
An examination of the constitutions or fundamental laws of the various states shows that while it is still possible for some states to conclude treaties which are valid without a constitutional body's approval, yet the whole tendency is to require such approval. This is shown by amendments to the constitutions of some states, or by modifications of their fundamental laws. The increasing number of multipartite treaties which always require ratification is an example of the tendency for the ratification requirement for all treaties.
EXTENT OF OBLIGATION DEPENDENT UPON THE FUNDAMENTAL LAW OF
THE CONTRACTING PARTIES AND THE POWERS GIVEN TO THE
NEGOTIATORS. An examination of the fundamental laws of the leading Powers has also shown that ratification is, in some states, a constitutional part of the making of a valid treaty; and that in others, only certain kinds of treaties must be approved for ratification by a constitutional body other than the negotiating functionary or the person giving him negotiating power. It is thus seen that in a given negotiation, the powers of the negotiator are dependent, first, upon the treaty power of the person, if other than himself, from whom he derives his delegated power; and second, the precise powers given him for the negotiation in which he is engaged. If the head of a state engages directly in the negotiation of a treaty, he has no more power than he is competent to clothe his representative with; nor has he more than is given him by the fundamental law of his state. Ordinarily it is assumed that the negotiators are familiar with
21 Dodd, Modern Constitutions, p. 165.
the steps through which the treaty must pass in each of the states engaged in a given negotiation, but such knowledge is not always possessed. It aids, however, in anticipating the kind of treaty that will be approved, when the treaty power in each state is understood by all the negotiators. “Without doubt,” says Geffken, “a government should know the various phases that the project must follow
tions if the treaty fails in one of these phases." 23
“A state is responsible for, and is bound by, all acts done by its agents within the limits of their constitutional capacity or of the functions or powers entrusted to them.” 24
GROUNDS WHICH HAVE BEEN SUGGESTED WHICH JUSTIFY THE REFUSAL
Following are the grounds suggested by various writers and statesmen as justifying the refusal to ratify treaties':
1. When the negotiator transcends his instructions ;
2. When force or menace has been applied to the person of the negotiator;
3. If physical or moral impossibility of fulfillment of the treaty develops before the time for ratification expires;
4. Mutual error of the negotiators respecting matters of fact which have a decisive bearing on the treaty;
5. A change in the circumstances under which the treaty was signed;
6. If clauses contrary to the public law of any of the contractants are incorporated in the treaty;
7. Lack of proper credentials on the past of the negotiator;
8. Failure to meet the approval of the necessary authority which has a voice in the treaty-making.
INSTANCES OF REFUSAL TO RATIFY TREATIES. 1. The Monroe-Pinckney Treaty between the United States and Great Britain, signed December 31, 1806, was not ratified by the
23 Geffken's Heffter, note, p. 201.
United States. President Jefferson did not submit it to the Senate, thus establishing a precedent followed in several instances by later Presidents.” 2. On August 11, 1802, a claims convention was signed by the United States and Spain. It was sent to the Senate on January 11, 1803, and on March 3d that body advised against ratification. The Spanish Minister obtained an opinion from five influential lawyers on an abstract case so framed as to cover the points in dispute regarding claims. These opinions were in favor of the Spanish contention. On January 9, 1804, a second vote was taken in the Senate and ratification was advised. Spain was by this time unwilling to ratify, and on October 13, 1804, Yrujo, the Spanish Minister at Washington, wrote Secretary of State Madison as follows:
By the communications I have made to this Government . . . you are informed of the just motives His Catholic Majesty has for not ratifying the convention pending between our two Governments, except on certain conditions, founded on the most rigorous justice, and necessary, as well to the honor of his sovereignty, as to the interests of his subjects. That His Majesty has the right to propose the alteration which he may judge proper for these objects, before the ratification, is indisputable, not only from the expression which is found in the seventh article of the said convention which says: “the present convention shall have no force or effect until it be ratified by the contracting parties,” but from many, other antecedent examples.”
Secretary Madison replied:
. . . Were it necessary to enforce these observations by an inquiry into the right of His Catholic Majesty to withhold his ratification in this case, it would not be difficult to show that it is neither supported by the principles of public law, nor countenanced by the examples which have been cited. According to the former, such a refusal ought to be founded either on a departure of the negotiating minister from his instructions, or on intervening occurrences, or on some surprise or deception. Neither of these can be alleged. The Spanish Government itself was privy to the negotiation, leaving, consequently, its
25 Other examples of the Executive withholding treaties from the Senate are the treaty with Mexico, March 21, 1853, relative to a passage across the Isthmus of Tehuantepec.; an extradition treaty with Colombia, March 30, 1872; and a trade-mark convention with Switzerland, February 14, 1885.
26 American State Papers, Foreign Relations, II, 624.