17

the negotiators. Although these, if satisfactory, originally signified an actual full power of the negotiators to bind the state within the limits of their instructions, at present they are understood to mean that the negotiator is vested merely with the powers of the organ under whose authority he acts, usually in practice the representative organ. Suppose the organ giving "full powers full powers" to the negotiator is the full treaty-making power of the state. It was held by early publicists that in such cases the document when signed bound the state and ratification became a mere form which could not be refused except for the most cogent reasons. 18 Though recent opinion is less definite, yet it holds that a strong obligation to ratify exists1o and this has been the view of the United States. Thus in 1802 and in 1819 the Secretary of State insisted that the Spanish crown was under an absolute obligation to ratify the treaties which. had been made within the instructions of the negotiators acting under full powers of the Crown.20 The United States has also fications and the parties are responsible for a failure to take measures necessary to put them into effect. See Wright, Am. J. of Int. Law, 10: 710 (Oct., 1916), Crandall, op. cit., p. 345; Anson, The Law and Custom of the Constitution, 3d ed., Oxford, 1907, vol. 2, pt. 1, p. 54.

17 Wheaton, International Law (Dana, ed.), pp. 337, 338; Crandall, op. cit., p. 2; Moore, Digest, 5: 184, 362; Satow, Diplomatic Practice, London, 1917, 2: 273; Harley, Am. Jl. Int. Law, 13: 389 (July, 1919), Wright, Minn. Law Rev., 4: 18.

18 Grotius, De Jure Belli ac Pacis, c. 11, sec. 12; Vattel, Le Droit des Gens, 2, c. 12, sec. 156; Martens, Précis des Droit de Gens, c. I, sec. 36.

19 After citing five authorities supporting an absolute obligation to ratify, thirteen for a moral obligation, eight for no obligation at all, and the circumstances of ten causes célèbres in which ratification was refused, Harley, loc. cit., concludes, "It would seem that the weight of opinion holds that a moral obligation to ratify exists." See also Moore, Digest, 5: 187; Scott, The Reports of the Hague Conferences of 1899 and 1907, London, 1917, introduction, p. xxcii; Hall, International Law (Higgins, ed.), p. 341.

20 A claims convention signed with Spain in 1802 was rejected by the Senate but on new evidence being presented, the Senate changed its mind. Now, however, Spain refused to ratify. "Were it necessary," replied Secretary Madison, "to enforce these observations by an inquiry into the right of His Catholic Majesty to withhold his ratification in this case, it would not be difficult to show that it is neither supported by the principles of public law, nor countenanced by the examples which have been cited." Madison to Yrujo, Oct. 15, 1804, Am. St. Pap., For. Rel., 2: 625. The con

admitted the same principle with reference to its own ratification when instructions have been given by the full treaty power. Thus in 1790 two-thirds of the Senate joined with the President in instructing the negotiation of a treaty with the Cherokees. When the treaty was submitted for ratification, the Senate committee found that it conformed to these instructions and consequently ratification became obligatory. The same was true of the consular convention with France signed in 1788 according to instructions of Congress which had power to make treaties under the Articles of Confederation. The treaty was submitted to the Senate for ratification after organization of the new government under the Constitution. On his advice being asked, John Jay, who continued in charge of foreign affairs, replied that "while he apprehended that the new convention would prove more inconvenient than beneficial to the United States, the circumstances under which it had been negotiated made, in his opinion, its ratification by the Senate indispensable." The Senate immediately proceeded to ratify.22

26. Signature under Authority of the President.

In case the agreement is of a character which the President has authority to make on his own responsibility, such as protocols, vention was finally ratified by Spain in 1818. Almost immediately a similar controversy arose over the Florida cession treaty. Secretary Adams said, "The President considers the treaty of 22d February last as obligatory upon the honor and good faith of Spain, not as a perfect treaty, ratification being an essential formality to that, but as a compact which Spain was bound to ratify." He then drew an analogy between an unratified treaty and a covenant to convey land, asserting that "the United States have a perfect right to do what a court of chancery would do in a transaction of similar character between individuals, namely, to compel the performance of the engagement as far as compulsion can accomplish it, and to indemnify themselves for all the damages and charges incident to the necessity of using compulsion." It should be noted that in the full powers of his plenipotentiary, the Spanish monarch had expressly promised to ratify "whatsoever may be stipulated and signed by you." 5 Moore, Digest, 189-190. In both of these cases the United States distinguished its own position, in which the recognized constitutional rights of the Senate precluded an obligation to ratify.

21 Crandall, op. cit., p. 79. The question might be raised whether such a delegation is not an unconstitutional delegation of legislative power. See infra, sec. 60.

22 Crandall, loc. cit.; Hayden, The Senate and Treaties, 1789-1817, N. Y., 1920, p. 7.

truces and armistices, he is bound by the act of his agents acting within their instructions. In such cases where the agent acts beyond his instructions, as did General Sherman in concluding an armistice with General Johnston in 1865, the President may repudiate the agreement as did President Lincoln on this occasion.23

In the case of treaties, full powers and instructions are generally from the President alone, although ratification requires the consent of the Senate. Consequently the latter retains full discretion to refuse ratification of the signed instrument.24 The Senate has often rejected treaties and the practice was thus justified by Secretary of State Clay: 25

"The government of his Britannic Majesty is well acquainted with the provision of the Constitution of the United States, by which the Senate is a component part of the treaty making power, and that the consent and advice of that branch of Congress are indispensable in the formation of treaties. According to the practice of this government the Senate is not ordinarily consulted in the initiatory state of a negotiation, but its consent and advice are only invoked after a treaty is concluded under the direction of the President and submitted to its consideration."

Foreign nations have acquiesced in the practice though occasionally exception has been taken to the practice of amendment or reservation by the Senate on the ground that such amendments present a virtual ultimatum to the foreign government to accept or reject, leaving no opportunity for negotiation.20

"His Majesty's Government," wrote Lord Lansdowne, refusing to accept the first Hay-Pauncefote treaty as amended by the Senate, "find themselves confronted with a proposal communicated to them by the United States Government, without any previous attempt to ascertain their views, for the abrogation of the Clayton-Bulwer treaty."

Objection is here taken to a breach of diplomatic etiquette in method but the full power of the United States under international law to refuse ratification or to consent only if certain alterations are made, is not denied.

23 Halleck, International Law, 4th ed. (Baker), 2: 356, infra, sec. 167. 24 Supra, note 17.

25 Moore, Digest, 5: 200. See also Foster, Practice of Diplomacy, N. Y., 1906, p. 276.

26 Willoughby, Constitutional Law, p. 465. See also Crandall, op. cit., p. 82, Moore, Digest, 5: 201; Satow, op. cit., 2; 274. See the vigorous denunciation of the Senate amendment to the proposed King-Hawksburg treaty of 1803 by Great Britain, Am. St. Pap., For. Rel., 3: 92-94; Hayden, op. cit., p. 150.

27. Reservations Expressly Consented to.

Though the United States can not be reproached with violation of international law if it refuses to ratify or qualifies its ratification of a treaty signed by authority of the President alone, yet a qualified ratification is of no effect unless consented to by both signatories. How may this consent be evidenced? Express consent to reservations by statement in the act of ratification or by exchange of notes would of course by sufficient,27 as would acceptance without objec

27 The Senate advised ratification of the treaty with France of Feb. 3, 1801, provided a new article be substituted for article II. Bonaparte ratified with this modification but added a new proviso. Ratifications were exchanged at Paris, but before proclamation President Jefferson resubmitted the treaty to the Senate which accepted Bonaparte's proviso. Malloy, Treaties, etc., p. 505. Hayden, op. cit., p. 124. After consenting to ratification of the General Act for the suppression of the African Slave Trade (1890), the Senate "Resolved further, That the Senate advise and consent to the acceptance of the partial ratification of the said General Act on the part of the French Republic, and to the stipulations relative thereto, as set forth in the protocol signed at Brussels, January 2, 1892." It then made a reservation on its own behalf. The protocol of deposit of ratifications of Feb. 2, 1892, provided for in Article 99 of the treaty, recites the Senate's resolution and states: "This resolution of the Senate of the United States having been preparatively and textually conveyed by the Government of His Majesty the King of the Belgians to the knowledge of all the signatory powers of the General Act, the latter have given their assent to its insertion in the present Protocol which will remain annexed to the Protocol of January 2d, 1892." Malloy, Treaties, etc., p. 1992. In the treaty of 1911, Japan gave express assent to an "understanding" and tacit assent to an "amendment." The proclamation of President Taft reads: "And whereas, the advice and consent of the Senate of the United States to the ratification of the said Treaty was given with the understanding 'that the treaty shall not be deemed to repeal or affect any of the provisions of the Act of Congress entitled An Act to regulate the Immigration of Aliens into the United States," approved February 20th, 1907;'

66

“And whereas, the said Treaty, as amended by the Senate of the United States, has been duly ratified on both parts, and the ratifications of the two Governments were exchanged in the City of Tokyo, on the fourth day of April, one thousand nine hundred and eleven;

Now, therefore, be it known that I, William Howard Taft, President of the United States of America, have caused the said Treaty, as amended and the said understanding to be made public, to the end that the same and every article and clause thereof may be observed and fulfilled with good faith by the United States and the citizens thereof. In testimony whereof, etc." Charles, Treaties, etc., p. 82. An interpretation proposed by the Senate to the treaty of 1868 with the North German Confederation was duly

tion of an official note stating such reservations.28 The terms of such a note must be consented to by all the organs constituting the treaty power of each state. Thus, as is the case with the treaty itself, unless the President and Senate have each consented to amendments, reservations or interpretations, the United States is not bound. Attempts of either to act separately have been unavailing. The Supreme Court said in reference to a joint resolution passed by a majority of the Senate, stating the purpose of the Senate in ratifying the treaty annexing the Philippines:

29

"We need not' consider the force and effect of a resolution of this sort. . . . The meaning of the treaty can not be controlled by subsequent explanations of some of those who may have voted to ratify it." Justice Brown, concurring, said:

"It can not be regarded as part of the treaty, since it received neither the approval of the President nor the consent of the other contracting power. ... The Senate has no right to ratify the treaty and introduce new terms into it, which shall be obligatory upon the other power, although it may refuse its ratificatiton, or make such ratification conditional upon the adoption of amendments to the treaty."

A similar fate has met interpretations or reservations made by the President without consent of the Senate, even when accepted by the other signatory. Thus explanatory notes signed by the communicated to that government and accepted as the true interpretation of the article. It was, however, omitted in the exchange copy given by that government. This omission being noticed later, a special protocol was signed in 1871, recognizing the interpretation. Crandall, op. cit., p. 88.

28 In negotiating the treaty of 1850 with Switzerland, the American negotiator agreed that the unqualified most-favored-nation clause of article 10 should be interpreted absolutely. In 1898, Switzerland claimed under this clause, the benefits offered to France under a reciprocity agreement of May 30, 1898. At first the United States objected that to admit the claim would be contrary to her accepted interpretation of identical most-favorednation clauses, but "It was found upon an examination of the original correspondence that the President of the United States was advised of the same understanding and that the dispatch in which it was expressed was communicated to the Senate when the treaty was submitted for its approval," consequently customs officials were directed to admit Swiss importations at the reduced rate. Moore, Digest, 5: 284.

29 Fourteen Diamond Rings v. United States (1901), 183 U. S. 176. "The power to make treaties is vested by the Constitution in the President and Senate, and while this proviso was adopted by the Senate, there is no evidence that it ever received the sanction or approval of the President." N. Y. Indians v. U. S. (1898), 170 U. S. 1. See also Moore, Digest, 5: 210; Crandall, op. cit., p. 88.