the parties becomes clearly apparent. Such consent must always be given expressly, or by unmistakable conduct, for a treaty cannot be concluded by mere tacit acquiescence1 or mere passivity. But it matters not whether an agreement is made orally, or in writing, or by such conduct as implies mutual consent, as, for instance, when an agreement is made by symbols. Thus, in time of war, the exhibition of a white flag symbolises the proposal of an agreement as to a brief truce, for the purpose of certain negotiations, and the acceptance of the proposal on the part of the other side by the exhibition of a similar symbol establishes a convention as binding as any written treaty. Thus, too, history tells of an oral treaty of alliance, secured by an oath, concluded in 1697 at Pillau between Peter the Great of Russia and Frederick III., Elector of Brandenburg? Again, treaties are sometimes concluded through the exchange of personal letters between the heads of two States, or through the exchange of diplomatic notes; for instance, the important so-called Rush-Bagot Treaty between the United States of America and Great Britain of April 28/29, 1817, concerning naval forces on the Great Lakes, was concluded by an exchange of diplo matic notes between Charles Bagot, the British minister at Washington, and Richard Rush, the acting American Secretary of State. However, as a matter of reason, treaties usually take the form of a written 3 document, signed by duly authorised representatives of the contracting parties. § 508. International compacts which take the form of 1 Tacit acquiescence must not be confounded with what in English law is sometimes called 'tacit consent,' i.e. a contract which is not made in writing or orally, but is inferred from conduct. 2 See Martens, i. § 112. 3 The only writer who nowadays insists that a written agreement is necessary for a treaty to be valid is, as far as I know, Bulmerincq (§ 56). But although all important treaties are naturally concluded in writing, the example of the agreements concluded between armed forces in time of war, either orally, or through symbols, proves that the written form is not absolutely necessary. 2 ventions, written contracts are sometimes termed not only agree- Acts, Conments or treaties, but acts, conventions, declarations, Declara protocols, and the like. But there is no essential 1 tions, etc. difference between them, and their binding force upon the contracting parties is the same, whatever be their name. The Geneva Convention, the Declaration of Paris, and the Final Act of the Vienna Congress are as binding as any agreement which goes under the name of treaty' or 'convention.' The attempt to distinguish fundamentally between a declaration' and a 'convention' by maintaining that, whereas a 'convention' creates rules of particular International Law between the contracting States only, a declaration' contains the recognition, on the part of the best qualified and most interested Powers, of rules of universal International Law, does not stand the test of scientific criticism. This becomes apparent from the mere fact that the Declaration of Paris of 1856 had not been agreed to by the United States of America, or by many other States, at the time of its promulgation. A 'declaration' is nothing else than the title of a law-making treaty, according to which the parties engage themselves to pursue in future a certain line of conduct. But such law-making treaties are quite as frequently styled conventions' as conventions' as 'declarations.' The best example is the Hague Convention' concerning the laws and usages of war, which is based upon the unratified declaration' concerning the laws and customs of war produced by the Brussels Conference of 1874. Again, the distinction made by the Government of the United States between treaties, which can only be 1 The distinction between 'agreement' and 'contract' in English law-see Anson, Contract, 11th ed. (1911), pp. 2-3-does not exist in International Law. 2 On the part of the British Foreign Office, see Parliamentary See above, § 487. Parts of ratified by the President with the consent of the Senate, and agreements, which do not require such consent,1 has nothing to do with International Law. It is a distinction according to the constitutional law-or the constitutional practice of the United States. And the distinction made by the British Foreign Office 2 between treaties and one class of conventions on the one hand, and another class of conventions, together with most agreements and declarations, on the other hand, according to which the former instruments are said to be concluded in the name of the heads of the States concerned, and the latter in the name of the respective 'Governments,' has nothing to do with International Law. § 509. Since International Law lays down no rules concerning the form of treaties, there exist no rules concerning the arrangement of the parts of written treaties. But the following order is usually observed. A first part, the so-called preamble, comprises the names of the heads of the contracting States, of their duly authorised representatives, and the motives for the conclusion of the treaty. A second part consists of the primary stipulations in numbered articles. A third part consists of miscellaneous stipulations concerning the duration of the treaty, its ratification, the accession of third Powers, and the like. The last part comprises the signatures of the representatives. But this order is by no means necessary. Sometimes, for instance, the treaty itself does not contain the very stipulations upon which the contracting parties have agreed, such stipulations being placed in an annex to the treaty. It may also happen that a treaty contains secret stipula 1 See Moore, v. § 752, and, in particular, Crandall, op. cit., §§ 5661. As regards the assertion that only such compacts require ratification as bear the title treaties or conventions, see below, § 512. * See Oakes and Mowat, The Great European Treaties of the Nineteenth Century (1918), p. 1 n. tions in an additional part, which are not made public with the bulk of the stipulations.1 V RATIFICATION OF TREATIES Grotius, ii. c. 11, § 12-Pufendorf, iii. c. 9, § 2-Vattel, ii. § 156-Hall, § 110-Westlake, i. pp. 290-292-Lawrence, § 132-Phillimore, ii. § 52— Twiss, i. § 214-Halleck, i. pp. 296-297-Taylor, §§ 364-367-Moore, v. §§ 743-756-Walker, § 30-Wharton, ii. §§ 131-131a-Hershey, No. 298 -Wheaton, §§ 256-263-Bluntschli, §§ 420-421-Heffter, § 87-Gessner in Holtzendorf, iii. pp. 15-18-Ullmann, § 78-Bonfils, Nos. 824-831Pradier-Fodéré, ii. Nos. 1100-1119-Mérignhac, ii. pp. 652-666-Nys, ii. pp. 507-515-Rivier, ii. § 50-Calvo, iii. §§ 1627-1636-Fiore, ii. No. 994, and Code, No. 755-Martens, i. §§ 105-108-Wicquefort, L'Ambassadeur et ses Fonctions (1680), ii. § xv.-Jellinek, Die rechtliche Natur der Staatenverträge (1880), pp. 53-56–Nippold, op. cit., pp. 123125-Wegmann, Die Ratifikation von Staatsverträgen (1892)—Crandall, op. cit., § 3-Satow, Diplomatic Practice, ii. §§ 606-612. tion and cation. § 510. Ratification is the term for the final confirma- Concep tion given by the parties to an international treaty con- Function cluded by their representatives. Although a treaty is of Ratificoncluded 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 2 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, no treaty has been concluded, but a mere mutual proposal to conclude a treaty has been agreed to. But this 1 The matter is treated with all details by Pradier-Fodéré, ii. §§ 1086-1099. See, for instance, Ullmann, § 78; Jellinek, op. cit., p. 55; Nippold, P. 11. Rationale for the Institution of Ratifica tion. opinion does not accord with the real facts.1 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 for one moment confounded the two, and considered 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 is always 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. § 511. The rationale for the institution 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. Its rationale is partly 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 for ratification is that treaties on many important matters are, according to the constitutional law of most States, not valid without some kind of consent on the part of parliaments. Governments must, therefore, have an opportunity of withdrawing from a treaty, in 1 The matter is very ably discussed by Rivier, ii. pp. 74-76. |