case parliaments refuse their approval. These two reasons have made, and still make, the institution of ratification a necessity for International Law. tion regu lutely, § 512. But ratification, although necessary in prin- Ratificaciple, is not always essential. Although it is now a larly, but universally recognised customary rule of International not absoLaw that treaties regularly require ratification, even if necessary. this is not expressly stipulated, there are exceptions to the rule. For treaties concluded by such State functionaries1 as have, ipso facto by their office, the power to exercise within certain narrow limits the treaty-making competence of their State, do not want ratification, but are binding at once when they are concluded, provided that the respective functionaries have not exceeded their powers. Further, treaties concluded by heads of States in person do not want ratification, provided that they do not concern matters in regard to which constitutional restrictions 2 are imposed upon heads of States. Again, it may happen that the contracting parties stipulate expressly, for the sake of a speedy execution of a treaty, that it shall be binding at once without ratifications being necessary. Thus, Article 6 of the Alliance between Great Britain and Japan of 1902, Article 8 of the Alliance of 1905, and Article 6 of the Alliance of 1911, stipulated that the agreement shall come into effect immediately after the date of signature.' Again, the Treaty of London of July 15, 1840, between Great Britain, Austria, Russia, Prussia, and Turkey, concerning the pacification of the Turco-Egyptian conflict, was accompanied by a secret protocol,3 signed by the representatives of the parties, according to which the treaty was to be executed at once, without being ratified. For the Powers were, on account of the victories of Mehemet Ali, very anxious to settle the conflict as 1 See above, § 496. 3 See Martens, N.R.G., i. P. 163. Length of tion. ciation. quickly as possible. But it must be emphasised that renunciation of ratification is valid only if given by representatives duly authorised to make such renunIf the representatives have not received a special authorisation to dispense with ratification, their renunciation is not binding upon the States which they represent. It is asserted that apart from those compacts which bear the title treaty or convention, ratification is only required where it is provided for ';1 but this assertion is too sweeping. Since all international compacts are contracts, and therefore treaties in the wider sense of the term, the title which a particular compact bears cannot decide the question as to whether it does, or does not, require ratification. The decision rather depends upon the contents of the compact. Thus a protocol, or an exchange of notes, which merely add some minor point, or record agreement on the interpretation of a clause in a treaty, do not require ratification, unless this is specially stipulated. The same is valid for agreements providing for a modus vivendi and the like, whatever title they may bear. Further, there is no doubt that matters of minor importance are frequently agreed upon by an exchange of notes, or in so-called protocols, arrangements, declarations, and the like, which are not considered to be subject to ratification, because the agreements therein contained are at once carried out. But apart from these obvious exceptions, all compacts require ratification, whatever title the document comprising them may bear. § 513. No rule of International Law prescribes the Ratifica length of time within which ratification must be given, or refused. If this is not specially stipulated by the contracting parties in the treaty itself, a reasonable length of time must be presumed to be mutually granted. 1 See Satow, op. cit., ii. § 606, p. 276. Without doubt, a refusal to ratify must be presumed from the lapse of an unreasonable time without ratification having been made. In most cases, however, treaties which are in need of ratification now contain a clause stipulating that they are subject to ratification, and also prescribing the time within which ratification should take place. Ratifica § 514. The question now requires attention whether Refusal of ratification can be refused on just grounds only, or tion. according to discretion. Formerly 1 it was maintained that ratification could not be refused unless the representatives had exceeded their powers, or violated their secret instructions. But nowadays there is probably no publicist who maintains that a State is in any case legally bound to accord ratification. Yet many insist that a State is, except for just reasons, in principle morally bound not to refuse ratification. I cannot see, however, the value of such a moral, in contradistinction to a legal, duty. The fact upon which everybody agrees is that International Law does in no case impose a duty of ratification upon a contracting party. A State refusing ratification will always have reasons for doing so which appear just to itself, although they may be unjust in the eyes of others. In practice, ratification is given, or withheld, at discretion. But in the majority of cases, of course, ratification is not refused. A State which often, and apparently wantonly, refused to ratify treaties would lose all credit in international negotiations, and would soon feel the consequences. On the other hand, it is impossible to lay 1 See Grotius, ii. c. 11, § 12; Bynkershoek, Quaestiones juris publici, ii. 7; Wicquefort, L'Ambassadeur, ii. 15; Vattel, ii. § 156; G. F. von Martens, § 48. 2 This must be maintained in spite of Wegmann's assertion (op. cit., p. 32) that a customary rule of the Law of Nations has to be recognised that ratification cannot regularly be re- Form of tion. down hard and fast rules respecting just and unjust causes for refusing ratification. The interests at stake are so various, and the circumstances which must influence a State are so imponderable, that it must be left to the discretion of every State to decide the question for itself. Numerous examples of important treaties which have not found ratification can be given. It suffices to mention the Hay-Pauncefote Treaty between the United States and Great Britain regarding the proposed Nicaragua Canal, signed on February 5, 1900, which was modified by the Senate of the United States in consenting to its ratification, this being equivalent to refusal of ratification. (See below, § 517.) § 515. No rule of International Law exists which prescribes a necessary form of ratification. Ratification can, therefore, be given tacitly as well as expressly. Tacit ratification takes place when a State begins the execution of a treaty without expressly ratifying it. Further, ratification may be given orally or in writing. although I am not aware of any case in which ratification was given orally. For it is usual for ratification to take the form of a document duly signed by the heads of the States concerned, and their Secretaries for Foreign Affairs. It is usual to draft as many documents as there are parties to the convention, and to exchange these documents between the parties. Sometimes the whole of the treaty is recited verbatim in the ratifying documents, but sometimes only the title, preamble, and date of the treaty, and the names of the signatory representatives are cited. As ratification is only the necessary confirmation of an already existing treaty, the essential requirement in a ratifying document is merely that it should refer clearly and unmistakably to the treaty to be ratified. The citation of title, preamble, date, and names of the representatives is, therefore, quite sufficient to satisfy that requirement, and I cannot agree with those writers who maintain that the whole of the treaty ought to be recited verbatim. § 516. Ratification is effected by those organs which Ratification, by exercise the treaty-making power of the States. These whom organs are regularly the heads of the States or their effected. Governments,1 but they can, according to the Municipal Law of some States, delegate the power of ratification for some parts of their territory to other representatives. Thus, the Viceroy of India is empowered to ratify treaties with certain Asiatic monarchs in the name of the King of Great Britain and Emperor of India. In case the head of a State ratifies a treaty, although the necessary constitutional requirements have not been previously fulfilled (as, for instance, where a treaty has not received the necessary approval from the Parliament of the said State), the question arises whether such ratification is valid, or null and void. Many writers 2 maintain that it is nevertheless valid. But this opinion is not correct, because it is clearly evident that, in such a case, the head of the State has exceeded his powers, and that, therefore, the State concerned cannot be held to be bound by the treaty.3 The conflict between the United States and France in 1831, frequently quoted in support of the opinion that such ratification is valid, is not in point. It is true that the United States insisted on payment of the indemnity stipulated by a treaty which had been ratified by the King of France without having received the necessary approval of the French Parliament. But the United States did not maintain that the ratification was valid; she insisted upon payment, because the French Government had admitted that such indemnity was due to her. 4 1 See above, § 495. 2 See, for instance, Martens, i. § 107, and Rivier, ii. p. 85. 3 See above, § 497, and Nippold, p. 147. 4 See Wharton, ii. § 131a, p. 20. VOL. I. 2U |