explained, however, that the United States is under no similar obligation to ratify negotiated treaties, because the other party is presumed to understand the lack of identity between the negotiating and ratifying authorities under our Constitution, even when the right of reservation has not, as it has in most cases, been expressly reserved in the full powers of the negotiators.81 The Senate's right to qualify its consent to ratification by reservations, amendments and interpretations was established through a reservation to the Jay treaty of 1794,82 has been exercised in about seventy cases, and has been judicially recognized.84 83 "In this country a treaty is something more than a contract, for the Federal Constitution declares it to be the law of the land. If so, before it can become a law, the Senate, in whom rests the authority to ratify or approve it, must agree to it. But the Senate are not required to adopt or reject it as a whole, but may modify or amend it." A refusal of the Senate either to reject or consent to ratification is of questionable propriety. Senator Sumner of Massachusetts, as Chairman of the Senate Foreign Relations Committee, succeeded in keeping the treaty for cession of the Virgin Islands by Denmark, submitted to it on December 3, 1867, pigeon-holed for over two years, when it was finally rejected.85 The Senate may suggest interpretations or pass resolutions not qualifying its consent to a treaty, as it did in the case of the Treaty of Paris ending the Spanish war. A majority of the Senate passed a resolution favoring the ultimate independence of the Philippines but the court held that such resolutions are legally of no effect. "The meaning of the treaty," said the Supreme Court, "cannot be 81 Supra, sec. 26; Moore, Digest, 5: 200; Crandall, op. cit., p. 94. 82 Hayden, op. cit., p. 75. 83 Senator Lodge, loc. cit., supra, note 67; Crandall, op. cit., pp. 79-81; Treaty Reservations by Foreign Powers and the United States, Sen. Doc. 72, 67th Cong., 1st Sess., 1921; David Hunter Miller, Reservations to Treaties, N. Y., 1919; Q. Wright, Amendments and Reservations to the Treaty, Minn. L. R., 4: 14. 84 Haver v. Yaker, 9 Wall. 32. See also Brown, J., in Fourteen Diamond Rings v. U. S., 176 (1901); Willoughby, op. cit., p. 462. 85 Moore, Digest, 1: 610. The French guarantee treaty, signed at the same time as the treaty of Versailles, appears to have been reposing in the archives of the Senate Foreign Relations Committee since its submission to the Senate by President Wilson in 1919. controlled by subsequent explanations of some of those who may have voted to ratify it." 86 178. The Ratification of Treaties. 87 The final act of ratification belongs to the President. He may refuse to submit a treaty to the Senate altogether as he has done in nine instances; he may submit it with recommendations for amendment as he has done in eleven cases; he may withdraw it from the Senate before that body has voted on it, illustrated by ten cases; and he may refuse to ratify a treaty consented to by the Senate with or without reservations as he has done in fifteen cases.88 Thus Presidents Roosevelt and Taft each abandoned arbitration treaties when it appeared that the Senate was prepared to insist upon essential alterations.89 As he is the best judge of the advisability of initiating negotiations on a given subject, so he is the best judge of the probability of a foreign nation accepting reservations or amendments. Foreign nations sometimes regard it as a discourtesy to have modifications of a negotiated treaty presented to them as an ultimatum, without their having had an opportunity to discuss them.90 It is therefore often advisable for the President to abandon a treaty which he thinks will probably be unacceptable to the other signatory. 179. The Exchange of Ratifications. The exchange of ratifications is performed under authority of the President and makes the treaty internationally binding." The other party to the treaty may refuse to accept Senate amendments or reservations in which case the treaty fails. Thus Great Britain 86 Fourteen Diamond Rings v. U. S., 183 U. S. 176. See also N. Y. Indians v. U. S., 170 U. S. 1 (1898); Moore, Digest, 5: 210; Crandall, op. cit., p. 88; supra, sec. 27. 87 Shepherd v. Insurance Co., 40 Fed. 341, 347; Willoughby, op. cit., p. 466; Crandall, op. cit., pp. 81, 94, 97; Taft, op. cit., p. 106; Black, Constitutional Law, p. 124; Foster, op. cit., p. 274; Senator Spooner of Wis., debate referred to supra, sec. 76, note 16; Moore, Digest, 5: 202. 88 Crandall, op. cit., pp. 95, 99. 89 Ibid., p. 98; Taft, op. cit., p. 106; Charles, Treaties, etc., p. 380. 90 Willoughby, op. cit., p. 464, and supra, sec. 26. 91 Crandall, op. cit., p. 93, and supra, sec. 29. rejected, after Senate alteration, a boundary settlement treaty in 1803, a slave trade convention in 1824 and the first Hay-Pauncefote Canal treaty in 1900.92 During exchange of ratifications, however, no new interpretations or reservations may be made. The President's representatives exchanged explanations to the Mexican peace treaty of 1848 and Clayton-Bulwer canal treaty with Great Britain of 1850 on exchange of ratifications, but, not having been submitted to the Senate, these explanations were of doubtful validity. Napoleon reserved on the treaty of 1801, at exchange of ratifications, but President Jefferson promptly resubmitted the treaty to the Senate which consented to the new reservation. This has been the usual practice.93 180. The Proclamation of Treaties. After ratifications have been exchanged, the treaty must be proclaimed to have validity as the law of the land and this act is in the power of the President alone. As an international obligation the treaty is binding from exchange of ratifications and such obligation is held to date back to the time of signature. As a law binding individuals, however, the rule is different: 96 95 "As the individual citizen, on whose rights of property it operates, has no means of knowing anything of it while before the Senate, it would be wrong in principle to hold him bound by it, as the law of the land, until it was ratified and proclaimed. And to construe the law, so as to make the ratification of the treaty relate back to its signing, thereby divesting a title already vested, would be manifestly unjust, and cannot be sanctioned." Thus a secret treaty might be internationally binding in the United States but it could not be the supreme law of the land. We must, therefore, regard proclamation as the first step in the execution of a treaty rather than the last step in its making. A treaty which is not self-executing may require legislation in addition to procla92 Moore, Digest, 5: 199–200; Hayden, op. cit., p. 145; supra, sec. 26. 93 Crandall, op. cit., pp. 85-92; and supra, sec. 27. 94 Crandall, op. cit., pp. 94-95; Moore, Digest, 5: 210. 95 Haver v. Yaker, 9 Wall. 32, supra, secs. 15, 29. 96 Ibid. See also Rev. Stat., sec. 210; Comp. Stat., sec. 308, and supra, sec. 15, note 14. mation to be executable. The power to perform such acts has been considered elsewhere.97 C. The Power to Terminate Treaties. 181. Change in Conditions. Certain provisions of treaty may be terminated by war. The courts have power, in controversies coming before them, to distinguish, on the basis of international law, those provisions of treaty thus affected, from those which are unaffected or merely suspended during the war, in case the political organs of the government have made no decision.98 In controversies with foreign governments, the President may recognize these distinctions. Certain provisions may become obsolete by a change of material conditions, through operation of the implied clause "rebus sic stantibus." It belongs to the President as the representative organ to decide when treaty provisions are thus terminated."" 182. Violation of Treaty by One Party. Treaties may become voidable by reason of violation by the other party and question has been raised whether the power to declare such a treaty void rests with Congress or the treaty-making power. 100 Justice Iredell thought the power belonged to Congress101 and on July 7, 1798, Congress held that it had the power when it declared that: 102 "Whereas the treaties concluded between the United States and France have been repeatedly violated on the part of the French government; and the just claims of the United States for reparation of the injuries so committed have been refused, and their attempts to negotiate an amicable adjustment of all complaints between the two nations have been repelled with indignity, etc.," therefore, "Be it enacted. . . That the United States are of right freed and exonerated from the stipulations of the treaties and of the 97 Supra, chap. x and sec. 137. 98 Society for the Propagation of the Gospel v. New Haven, 8 Wheat. 464, 494 (1823), Moore, Digest, 5: 372-386. 99 Moore, Digest, 3: 190; 5: 335-341; supra, sec. 107, note 63. 101 Ware . Hylton, 3 Dall. 199, 261 (1796). 102 I Stat., 578; Moore, Digest, 5: 356; Richardson, Messages, 7: 518. |