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VIEWS OF AUTHORITIES CONCERNING THE OBLIGATION TO RATIFY
An examination of the opinions of writers and authorities shows that upon the subject of ratification three fairly distinguishable views prevail : 1, that no obligation to ratify exists, ratification being purely a matter of discretion; 2, that a moral obligation exists; 3, that where the negotiator has remained within his instructions, a perfect or legal obligation exists.
Among the authorities in group 1 are Bernard, Bonfils, Calvo, Funck-Bretano and Sorel, von Seligman, Hershey, Wilson, Wilson and Tucker.
In group 2 are Bluntschli, Bynkershoek, Bulmerincq, Despagnet, Duer, Fiore, Hall, Hefftere, Jellinck, Twiss, Ullmann, Wharton, and Woolsey.
Group 3 includes Grotius, Kluber, Martens, Field, and Wegmann. (It should be noted that some of these writers held that ratification was unnecessary for the validity of the treaty; at the same time they recognized ratification as a step of formality in treaty-making.)
It has been noted that at least five authorities believe that ratification may not be withheld. But of these, the earlier writers thought that a treaty was valid at signature and it is clear that their conception of ratification was not the same as that which now prevails, that is, that a treaty is valid only after an exchange of ratifications. Wegmann is the only recent writer who states that a legal obligation to ratify exists; he believes that a gradually developing and existing customary law (Gewohnheitsrecht) forbids the refusal to ratify except in a few cases. While it is unquestionable that these writers are much more emphatic than others in expressing their views that a very strong obligation to ratify exists, some doubt must remain as to whether or not they believe it to be a legal obligation.
More assurance can be felt, however, when moral obligation is considered. Certainly those writers who believe in a perfect or legal obligation could also be grouped with those who hold that there is a
moral obligation. This being true, it would seem that the weight of opinion holds that a moral obligation to ratify exists. This obligation increases proportionately with the scope and difficulty of the negotiation of the treaty. As the eminent French jurist, Renault, has said, in a negotiation where many States are represented, there is considerable difficulty in reaching agreements on many points; concessions must be made here, for concessions granted there; and principles which are considered vital by one state may be held unimportant by another. Moreover, the physical difficulty of getting a large group of negotiators together is very great; time is required; large sums must go for the necessary expense; and the negotiators must leave their duties at home. Since a reconsideration of the agreements reached would require a new gathering of the negotiators, it appears that a very high moral obligation to ratify exists, especially in case of multipartite or international treaties.
JOHN EUGENE HARLEY.
THE AMERICAN-GERMAN CONFERENCE ON PRISONERS
BERNE, SWITZERLAND, SEPTEMBER 24 TO NOVEMBER 11, 1918.
WHEN, in 1914, the Great War broke upon an astonished world, we rather took comfort to ourselves in the thought that no matter how swiftly and vigorously military operations might be prosecuted, the Conventions of Geneva and of The Hague would insure humane care and chivalrous treatment to the prisoners of war of both sides. Perhaps unconsciously we based our feeling of assurance in this regard upon two assumptions. The first of these was that the terms of those conventions were of themselves legally binding upon the parties to the great conflict; and the second that in this day and generation of high development in the elements of morality and humanity the belligerents would feel themselves morally if not technically constrained to abide by the principles, and to follow, in practice, the honorable provisions of the conventions.
There are two particular conventions falling under consideration in this connection. These are, the Convention Respecting the Laws and Customs of War on Land, generally referred to as Hague IV of 1907; and the Convention for the Adaptation to Maritime War of the Principles of the Geneva Convention of 1906, commonly known as Hague X of 1907. Each of these agreements contains a provisional article, practically identical in the two instances, worded substantially as follows:
The provisions contained ... in the present convention do not apply except between contracting parties, and only if all the belligerents are parties to the convention.
Had our assumptions in this respect been securely founded, there would perhaps have been no occasion for any of the belligerent par
1 The author of this article, Commander Raymond Stone, U. S. Navy, was Assistant Commissioner on the Special Diplomatic Mission of the United States to the Conference.
ties to enter into or even to desire conferences on the subject of the care and treatment of prisoners of war; but in actuality the conventions were not operative for the reason that some of the belligerents were nonsignatory and, also, both the provisions of these conventions and the principles underlying them were ignored and flouted by several of the belligerents, notably by the Central Powers. It should be noted also that the magnitude of the forces engaged in this war and the large number of prisoners taken at the outset of the conflict by both sides were such that adequate preparations for the reception, housing, feeding, and administration, of the prisoners of war were sadly deficient on both sides. Neither side seems to have foreseem with any degree of accuracy the vast responsibility that would devolve upon captor states by reason of the numbers of prisoners of war that might be taken. In addition to this fact, the policy of the Central Powers, particularly that of Germany, a policy sometimes avowed and sometimes very apparent without avowal, which dictated harsh and even inhumane treatment of prisoners of war with the aim and intention of carrying to the enemy population ideas of terror and frightfulness which might deter the population from prompting or encouraging enlistment in the fighting forces of their countries, seemed to render it very necessary that the belligerent countries should enter into some definite agreements prescribing reciprocal and binding rules and regulations covering the general subject of prisoners of war. At least two British-German and two French-German conferences on this subject were held in neutral cities within the first three years of the war. Upon the entry of the United States into the war, our Government deemed it expedient to utter a pronouncement to the effect that while the Government of the United States, for good and sufficient reasons, did not consider that the actual provisions of the several Conventions of Geneva and of The Hague were operative in this war, it did consider that the principles underlying the provisions were of force and that they would be followed by the United States as a general guide in the circumstances. From time to time during the earlier stages of our participation in the war efforts were made through diplomatic channels to arrive
at some mutually acceptable modus vivendi under which the care, handling, treatment, and pay, of prisoners of war of each country held by the other might be assured and guaranteed. Whether due to the unwillingness of Germany, then in military ascendancy, to really come to an agreement, or to the inherent difficulties of presenting and discussing opposing views through the instrumentality of neutral protecting Powers, negotiations by this means proved disappointingly unsatisfactory. In the meantime, frequent and persistent reports, some of which were well authenticated, concerning the unfavorable, not to say harsh and brutal, treatment by the Germans of prisoners of war belonging to the Entente Allies and to the United States, made increasingly evident the necessity for an actual face-to-face conference of fully accredited representatives of both governments in order to discuss and arrive at some definite accord with guarantees of fulfillment.
During the spring and summer of 1918 the proposal for an American-German conference in some neutral country was made by our Government and eventually agreed to by the Imperial German Government. After some delay, the date of the convening of this conference, at first suggested for the early part of August, was finally decided upon as the 23rd of September, and the place of meeting as Berne, the capital of the Swiss Confederation. It was believed at the time that Germany was much more interested in discussing the situation of German civilians in the United States than in treating the subject of prisoners of war, and that the German Government had assented to a conference largely in order that the civilian question might be taken up. At this stage of the war there were not many German prisoners of war in our hands, nor Americans in the hands of the Germans; there were, however, a large number of German civilians in the United State liable to detention under the Espionage Act and other statutes, and a few actually interned in detention camps or under criminal charges before the civil courts. The Government decided to send to Berne a Special Diplomatic Mission composed of delegates representing the State Department, the Navy Department, the War Department, the Department of Justice, and the