§ 508. International compacts which take the form of written contracts, are, besides Agreements or Treaties, sometimes termed Acts, sometimes Conventions, sometimes Declarations. But there is no essential difference between them, and their binding force upon the contracting parties is the same whatever be their name. The Geneva Convention, the Declarations of Paris and of London, 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[866] 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. A "Declaration" is nothing else but the title of a law-making treaty according to which the parties engage themselves to pursue in future a certain line of conduct.[867] But such law-making treaties are quite as frequently styled "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.

§ 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 stipulations in an additional part, which are not made public with the bulk of the stipulations.[868]

V RATIFICATION OF TREATIES

Grotius, II. c. 11, § 12—Pufendorf, III. c. 9, § 2—Vattel, II. § 156—Hall, § 110—Westlake, I. pp. 279-280—Lawrence, § 132—Phillimore, II. § 52—Twiss, I. § 214—Halleck, I. pp. 276-277—Taylor, §§ 364-367—Moore, V. §§ 743-756—Walker, § 30—Wharton, II. §§ 131-131A—Wheaton, §§ 256-263—Bluntschli, §§ 420-421—Heffter, § 87—Gessner in Holtzendorff, III. pp. 15-18—Ullmann, § 78—Bonfils, Nos. 824-831—Pradier-Fodéré, II. Nos. 1100-1119—Mérignhac, II. pp. 652-666—Nys, III. pp. 28-36—Rivier, II. § 50—Calvo, III. §§ 1627-1636—Fiore, II. No. 994, and Code, No. 750—Martens, I. §§ 105-108—Wicquefort, "L'Ambassadeur et ses fonctions" (1680), II. Section XV.—Jellinek, "Die rechtliche Natur der Staatenverträge" (1880), pp. 53-56—Nippold, op. cit. pp. 123-125—Wegmann, "Die Ratifikation von Staatsverträgen" (1892).

§ 510. Ratification is the term for the final confirmation given by the parties to an international treaty concluded by their representatives. Although a treaty is concluded 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[869] 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, there is no treaty concluded, but a mere mutual proposal agreed to to conclude a treaty. But this opinion does not accord with the real facts.[870] 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 dreamt of confounding the two and considering 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 always is 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. The reason is 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 is that treaties on many important matters are, according to the Constitutional Law of most States, not valid without some kind of consent of Parliaments. Governments must therefore have an opportunity of withdrawing from a treaty in case Parliaments refuse their recognition. These two reasons have made, and still make, the institution of ratification a necessity for International Law.

§ 512. But ratification, although necessary in principle, is not always essential. Although it is now a universally recognised customary rule of International Law that treaties are regularly in need of ratification, even if the latter was not expressly stipulated, there are exceptions to the rule. For treaties concluded by such State functionaries[871] as have within certain narrow limits, ipso facto by their office, the power to exercise the treaty-making competence of their State do not want ratification, but are binding at once when they are concluded, provided 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[872] are imposed upon heads of States. And, lastly, 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, the Treaty of London of July 15, 1840, between Great Britain, Austria, Russia, Prussia, and Turkey concerning the pacification of the Turko-Egyptian conflict was accompanied by a secret protocol,[873] signed by the representatives of the parties, according to which the treaty was at once, without being ratified, to be executed. For the Powers were, on account of the victories of Mehemet Ali, very anxious to settle the conflict as quickly as possible. But it must be emphasised that renunciation of ratification is valid only if given by representatives duly authorised to make such renunciation. If the representatives have not received a special authorisation to dispense with ratification, then renunciation is not binding upon the States which they represent.

§ 513. No rule of International Law prescribes the length of time within which ratification must be given or refused. If such length of time is not specially stipulated by the contracting parties in the very treaty, a reasonable length of time must be presumed as mutually granted. 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 contain nowadays a clause stipulating the reservation of ratification, and at the same time a length of time within which ratification should take place.

§ 514. The question now requires attention whether ratification can be refused on just grounds only or according to discretion. Formerly[874] it was maintained that ratification could not be refused in case the representatives had not 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[875] bound not to refuse 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 such line of action 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 ratification of treaties would lose all credit in international negotiations and would soon feel the consequences. On the other hand, it is impossible to lay down hard-and-fast rules respecting just and unjust causes of refusal of 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 ratified with modifications by the Senate of the United States, 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 as well tacitly 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 the necessary confirmation only of an already existing treaty, the essential requirement in a ratifying document is merely that it 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 exercise the treaty-making power of the States. These organs are regularly the heads of the States, but they can, according to the Municipal Law of some States, delegate the power of ratification for some parts of the globe 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, and the Governor-General of Turkestan has a similar power for the Emperor of Russia.

In case the head of a State ratifies a treaty, although the necessary constitutional requirements have not been previously fulfilled, as, for instance, in the case in which 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[876] maintain that such ratification 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.[877] 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.[878]

§ 517. It follows from the nature of ratification as a necessary confirmation of a treaty already concluded that ratification must be either given or refused, no conditional or partial ratification being possible. That occasionally a State tries to modify a treaty in ratifying it cannot be denied, yet conditional ratification is no ratification at all, but equivalent to refusal of ratification. Nothing, of course, prevents the other contracting party from entering into fresh negotiations in regard to such modifications; but it must be emphasised that such negotiations are negotiations for a new treaty,[879] the old treaty having become null and void through its conditional ratification. On the other hand, no obligation exists for such party to enter into fresh negotiations, it being a fact that conditional ratification is identical with refusal of ratification, whereby the treaty falls to the ground. Thus, for instance, when the United States Senate on December 20, 1900, in consenting[880] to the ratification of the Hay-Pauncefote Treaty as regards the Nicaragua Canal, added modifying amendments, Great Britain did not accept the amendments and considered the treaty fallen to the ground.

Quite particular is the case of a treaty to which a greater number of States are parties and which is only partially ratified by one of the contracting parties. Thus France, in ratifying the General Act of the Brussels Anti-Slavery Conference of July 2, 1890, excepted from ratification articles 21 to 23 and 42 to 61, and the Powers have acquiesced in this partial ratification, so that France is not bound by these twenty-three articles.[881]

But it must be emphasised that ratification is only then partial and conditional if one or more stipulations of the treaty which has been signed without reservation are exempted from ratification, or if an amending clause is added to the treaty during the process of ratification. It is therefore quite legitimate for a party who has signed a treaty with certain reservations as regards certain articles[882] to ratify the approved articles only, and it would be incorrect to speak in this case of a partial ratification.

Again, it is quite legitimate—and one ought not in that case to speak of conditional ratification—for a contracting party who wants to secure the interpretation of certain terms and clauses of a treaty to grant ratification with the understanding only that such terms and clauses should be interpreted in such and such a way. Thus when, in 1911, opposition arose in Great Britain to the ratification of the Declaration of London on account of the fact that the meaning of certain terms was ambiguous and that the wording of certain clauses did not agree with the interpretation given to them by the Report of the Drafting Committee, the British Government declared that they would only ratify with the understanding that the interpretation contained in the Report should be considered as binding and that the ambiguous terms concerned should have a determinate meaning. In such cases ratification does not introduce an amendment or an alteration, but only fixes the meaning of otherwise doubtful terms and clauses of the treaty.

§ 518. The effect of ratification is the binding force of the treaty. But the question arises whether the effect of ratification is retroactive, so that a treaty appears to be binding from the date when it is duly signed by the representatives. No unanimity exists among publicists as regards this question. As in all important cases treaties themselves stipulate the date from which they are to take effect, the question is chiefly of theoretical interest. The fact that ratification imparts the binding force to a treaty seems to indicate that ratification has regularly no retroactive effect. Different, however, is of course the case in which the contrary is expressly stipulated in the very treaty, and, again, the case when a treaty contains such stipulations as shall at once be executed, without waiting for the necessary ratification. Be this as it may, ratification makes a treaty binding only if the original consent was not given in error or under a delusion.[883] If, however, the ratifying State discovers such error or delusion and ratifies the treaty nevertheless, such ratification makes the treaty binding. And the same is valid as regards a ratification given to a treaty although the ratifying State knows that its representatives have exceeded their powers by concluding the treaty.

VI EFFECT OF TREATIES

Hall, § 114—Lawrence, § 134—Halleck, I. pp. 279-281—Taylor, §§ 370-373—Wharton, II. § 137—Wheaton, § 266—Bluntschli, §§ 415-416—Hartmann, § 49—Heffter, § 94—Bonfils, Nos. 845-848—Despagnet, Nos. 447-448—Pradier-Fodéré, II. Nos. 1151-1155—Mérignhac, II. pp. 667-672—Rivier, II. pp. 119-122—Calvo, III. §§ 1643-1648—Fiore, II. Nos. 1008-1009, and Code, Nos. 768-778—Martens, I. §§ 65 and 114—Nippold, op. cit. pp. 151-160.

§ 519. By a treaty the contracting parties in the first place are concerned. The effect of the treaty upon them is that they are bound by its stipulations, and that they must execute it in all its parts. No distinction should be made between more and less important parts of a treaty as regards its execution. Whatever may be the importance or the insignificance of a part of a treaty, it must be executed with good faith, for the binding force of a treaty covers equally all its parts and stipulations. If, however, a party to a treaty concluded between more than two parties signs it with a reservation as regards certain articles, such party is not bound by these articles, although it ratifies[884] the treaty.

§ 520. It must be specially observed that the binding force of a treaty concerns the contracting States only, and not their subjects. As International Law is a law between States only and exclusively, treaties can have effect upon States and can bind States only and exclusively. If treaties contain stipulations with regard to rights and duties of the contracting States' subjects,[885] courts, officials, and the like, these States have to take such steps as are necessary, according to their Municipal Law, to make these stipulations binding upon their subjects, courts, officials, and the like. It may be that according to the Municipal Laws of some countries the official publication of a treaty concluded by the Government is sufficient for this purpose, but in other countries other steps are necessary, such as, for example, special statutes to be passed by the respective Parliaments.[886]

§ 521. As treaties are binding upon the contracting States, changes in the government or even in the form of government of one of the parties can as a rule have no influence whatever upon the binding force of treaties. Thus, for instance, a treaty of alliance concluded by a State with constitutional government remains valid, although the Ministry may change. And no head of a State can shirk the obligations of a treaty concluded by his State under the government of his predecessor. Even when a monarchy turns into a republic, or vice versa, treaty obligations regularly remain the same. For all such changes and alterations, important as they may be, do not alter the person of the State which concluded the treaty. If, however, a treaty stipulation essentially presupposes a certain form of government, then a change from such form makes such stipulation void, because its execution has become impossible.[887]

§ 522. According to the principle pacta tertiis nec nocent nec prosunt, a treaty concerns the contracting States only; neither rights nor duties, as a rule, arise under a treaty for third States which are not parties to the treaty. But sometimes treaties have indeed an effect upon third States. Such an effect is always produced when a treaty touches previous treaty rights of third States. Thus, for instance, a commercial treaty conceding more favourable conditions than hitherto have been conceded by the parties thereto has an effect upon all such third States as have previously concluded commercial treaties containing the so-called most-favoured-nation clause[888] with one of the contracting parties.

The question arises whether in exceptional cases third States can acquire rights under such treaties as were specially concluded for the purpose of creating such rights not only for the contracting parties but also for third States. Thus, the Hay-Pauncefote Treaty between Great Britain and the United States of 1901, and the Hay-Varilla Treaty between the United States and Panama of 1903, stipulate that the Panama Canal to be built shall be open to vessels of commerce and of war of all nations, although Great Britain, the United States, and Panama only are parties.[889] Thus, further, article 5 of the Boundary Treaty of Buenos Ayres of September 15, 1881, stipulates that the Straits of Magellan shall be open to vessels of all nations, although Argentina and Chili only are parties. Again, the Treaty of Paris, signed on March 30, 1856, and annexed to the Peace Treaty of Paris of 1856, stipulates that Russia shall not fortify the Aland[890] Islands; although this stipulation was made in the interest of Sweden, only Great Britain, France, and Russia are parties. I believe that the question must be answered in the negative, and nothing prevents the contracting parties from altering such a treaty without the consent of third States, provided the latter have not in the meantime acquired such rights through the unanimous tacit consent of all concerned.

It must be emphasised that a treaty between two States can never invalidate a stipulation previously created by a treaty between one of the contracting parties and a third State, unless the latter expressly consents. If, for instance, two States have entered into an alliance and one of them afterwards concludes a treaty with a third State, according to which all conflicts without exception shall be settled by arbitration, the previous treaty of alliance remains valid even in the case of war breaking out between the third State and the other party to the alliance.[891] Therefore, when in 1911 Great Britain contemplated entering, with the United States of America, into a treaty of general arbitration according to which all differences should be decided by arbitration, she notified Japan of her intention, on account of the existing treaty of alliance, and Japan consented to substitute for the old treaty a new treaty of alliance,[892] article 4 of which stipulates that the alliance shall never concern a war with a third Power with whom one of the allies may have concluded a treaty of general arbitration.

VII MEANS OF SECURING PERFORMANCE OF TREATIES

Vattel, II. §§ 235-261—Hall, § 115—Lawrence, § 134—Phillimore, II. §§ 54-63A—Bluntschli, §§ 425-441—Heffter, §§ 96-99—Geffcken in Holtzendorff, III. pp. 85-90—Ullmann, § 83—Bonfils, Nos. 838-844—Despagnet, Nos. 451-452—Pradier-Fodéré, II. Nos. 1156-1169—Rivier, II. pp. 94-97—Nys, III. pp. 36-41—Calvo, III. §§ 1638-1642—Fiore, II. Nos. 1018-1019, and Code, Nos. 784-791—Martens, I. § 115—Nippold, op. cit. pp. 212-227.

§ 523. As there is no international institution which could enforce the performance of treaties, and as history teaches that treaties have frequently been broken, various means of securing performance of treaties have been made use of. The more important of these means are oaths, hostages, pledges, occupation of territory, guarantee. Nowadays these means, which are for the most part obsolete, have no longer great importance on account of the gratifying fact that all States are now much more conscientious and faithful as regards their treaty obligations than in former times.

§ 524. Oaths are a very old means of securing the performance of treaties, which was constantly made use of not only in antiquity and the Middle Ages, but also in modern times. For in the sixteenth and seventeenth centuries all important treaties were still secured by oaths. During the eighteenth century, however, the custom of securing treaties by oaths gradually died out, the last example being the treaty of alliance between France and Switzerland in 1777, which was solemnly confirmed by the oaths of both parties in the Cathedral at Solothurn. The employment of oaths for securing treaties was of great value in the times of absolutism, when little difference used to be made between the State and its monarch. The more the distinction grew into existence between the State as the subject of International Law on the one hand, and the monarch as the temporary chief organ of the State on the other hand, the more such oaths fell into disuse. For an oath can exercise its force on the individual only who takes it, and not on the State for which it is taken.

§ 525. Hostages are as old a means of securing treaties as oaths, but they have likewise, for ordinary purposes[893] at least, become obsolete, because they have practically no value at all. The last case of a treaty secured by hostages is the Peace of Aix-la-Chapelle in 1748, in which hostages were stipulated to be sent by England to France for the purpose of securing the restitution of Cape Breton Island to the latter. The hostages sent were Lords Sussex and Cathcart, who remained in France till July 1749.

§ 526. The pledging of movable property by one of the contracting parties to the other for the purpose of securing the performance of a treaty is possible, but has not frequently occurred. Thus, Poland is said to have pledged her crown jewels once to Prussia.[894] The pledging of movables is nowadays quite obsolete, although it might on occasion be revived.

§ 527. Occupation of territory, such as a fort or even a whole province, as a means of securing the performance of a treaty, has frequently been made use of with regard to the payment of large sums of money due to a State under a treaty. Nowadays such occupation is only resorted to in connection with treaties of peace stipulating the payment of a war indemnity. Thus, the preliminary peace treaty of Versailles in 1871 stipulated that Germany should have the right to keep certain parts of France under military occupation until the final payment of the war indemnity of five milliards of francs.