method provided, but if upon receipt of the procès-verbal of the deposit of such qualified ratification, any signatory objects to the reservations, the treaty will not be in effect as between those signatories. As to signatories offering no objection the reservations will be regarded as tacitly accepted, and the treaty will be in effect as from the date of deposit of ratifications. Undoubtedly, when foreign states make reservations the Senate ought to be given an opportunity to object to such reservations41 and that was done in the French reservation to the African Slave Trade Convention of 1890.42 It does not appear that all reservations attached to deposit of ratifications of the Hague Convention were submitted to the

41" It is believed that it is immaterial whether the reservation be made before, at, or after signing, as until a Power has ratified and deposited ratifications of the Convention it is not bound. But good faith requires that objections to any article be stated either before or at the time of signing, so that nations may know the nature and extent of the obligations they are assuming with other nations. International conventions are often compromises, and the price of a compromise to a nation may be the very article which another nation excludes from the convention or interprets in a special sense in the act of ratification." Scott, op. cit., p. xxviii. See also supra, note 37.

42 The following draft of a Protocol of Jan. 2, 1892, is printed in Malloy, Treaties, etc., p. 1990, following the African Slave Trade General act of 1890:

"The undersigned . . . met at the Ministry of Foreign Affairs at Brussels, in pursuance of Article XCIX of the General Act of July 2, 1890, and in execution of the Protocol of July 2, 1891, with a view to preparing a certificate of the deposit of the ratifications of such of the signatory powers as were unable to make such deposit at the meeting of July 2, 1891.

"His Excellency the Minister of France declared that the President of the Republic, in his ratification of the Brussels General Act had provisionally reserved, until a subsequent understanding should be reached, Articles XXI, XXII, XXIII, and XLII to LXI. The representatives . . ., acknowledged to the Minister of France the deposit of the ratifications of the President of the French Republic, as well as of the exception bearing upon Articles XXI, XXII, XXIII, and XLII to LXI.

"It is understood that the powers which have ratified the General Act in its entirety, acknowledge that they are reciprocally bound as regards all its clauses.

"It is likewise understood that these powers shall not be bound toward those which shall have ratified it partially, save within the limits of the engagements assumed by the latter powers.

Senate and question might arise as to their validity, though undoubtedly, after a considerable lapse of time, the foreign nation would be entitled to assume tacit acceptance of its reservation.48

45

29. Exchange of Ratifications under Authority of the President. Even after the treaty has been ratified by both parties and interpretations, reservations or amendments properly consented to, the foreign nation can not hold the United States bound until ratifications have been exchanged. This act, performed under authority of the President, gives the treaty complete international validity, which, so far as international obligations are concerned, is then held to date back to the time of signature unless expressly stated otherwise in the treaty itself.""

66

46

'Finally, it is understood that, as regards the powers that have partially ratified, the matters forming the subject of Articles XLII to LXI, shall continue, until a subsequent agreement is adopted to be governed by the stipulations and arrangements now in force."

The United States Senate resolution of ratification expressly accepted the French reservation and made another which was consented to by the powers prior to deposit of ratification. Supra, note 27.

43 It does not appear that the Senate had an opportunity to consider the reservation to the Sanitary Convention of 1903 made by Persia on deposit of ratifications. (Malloy, p. 2129.) The Procès-verbal of ratification contains reservations by Great Britain and the United States also but these were proposed at signature. (Miller, op. cit., pp. 112-117.) In its resolution of ratification the Senate failed to note the reservations made at signature either by the American or foreign plenipotentiaries. President Roosevelt hesitated to ratify the convention but did so when informed by the French Government that reservations attached to signature became part of the treaty and so had been in reality accepted by the Senate. (Ibid., pp. 117-119.)

44 Ratification in the United States is under authority of the President alone and he may refuse to ratify treaties after the Senate has consented. Shepherd v. Insurance Co., 40 Fed. 341; Taft, Our Chief Magistrate, and His Powers, p. 106; Crandall, op. cit., pp. 81, 94, 97; Willoughby, op. cit., 1: 466; Black, Constitutional Law, p. 124; Foster, Practice of Diplomacy, p. 279; Spooner, Sen. from Wis., Cong. Rec., 59th Cong., 1st Sess., p. 1419, quoted Corwin, op. cit., p. 175. See also colloquy Senators Reed, Mo., and Brandegee, Conn., March 2, 1920, Cong. Rec., 59: 4032.

45 Scott, op. cit., p. xxvii; Foster, op. cit., p. 280; Crandall, op. cit., p. 6. 46 Crandall, op. cit., p. 93.

47 Haver v. Yaker, 9 Wall. 32; Crandall, op. cit., p. 343; Willoughby, op. cit., 1: 517; Hall (Higgins ed.), op. cit., 343, supra, sec. 15, note 14; infra, secs. 179, 180.

It thus appears that foreign nations recognize their duty to know the organization of the full treaty power under the Constitution. They recognize that the United States is not responsible for any instrument beyond the instructions of the negotiators and is not bound by a treaty, signed or ratified merely under authority of the President without advice and consent of the Senate. They have likewise recognized that reservations or amendments, not consented to by the whole treaty power, do not bind the United States unless there is reason to suppose that such action had taken place.

30. Treaty Provisions Ultra Vires from Lack of Original Authority.

Difficulties, however, arise in cases where the constitutional law defining the competence of the organ for making agreements is obscure. In such cases, is the foreign nation justified in accepting the President's interpretation of the Constitution? We must recall that the President is for them the only official source of information about the Constitution of the United States.48 Following practice, the answer seems to depend upon whether the alleged want of competence arises (1) from a lack of original authority or (2) from operation of obscure constitutional limitations.

Foreign nations are supposed to know what organs the Constitution designates for concluding various types of international agreements. Thus they are supposed to know that in England power to make treaties is vested in the Crown in Council, that in France: 50

"The President of the Republic shall negotiate and ratify treaties. Treaties of peace and of commerce, treaties which involve the finances or the state, those relating to the person and property of French citizens in foreign countries, shall be ratified only after having been voted by the two chambers."

That in the United States. "The President shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur." 51 Until these organs have authorized ratification, foreign nations can not hold

48 Supra, sec. 13.

49 Anson, op. cit., vol. 2, pt. 1, p. 54; pt. 2, p. 108. 50 Constitutional Law of July 16, 1875, art. 8.

51 Const. Art. II, sec. 2.

the nation bound even though the authority conducting negotiations neglected to inform them or informed them erroneously as to the organs with constitutional competence. However, all agreements are not treaties. Certain military agreements, such as armistices, are usually within the inherent power of the Commander-in-Chief. Others such as protocols and agreements of temporary effect are within the inherent power of the representative organ.52 The President has often concluded such agreements, notably the preliminaries of peace to end the Spanish and World Wars. If he permits the other nation to understand that such action is within his constitutional authority, is the United States bound, even though the Senate subsequently take a contrary view? Opinions have differed in the United States but foreign nations have actually held the United States bound.54 We believe that in such cases the United States is bound only if the President actually is within the scope of his constitutional powers. However, the extent of these powers is so obscure that the foreign nation is justified in accepting the President's own view of his powers and holding the United States

53

52 Crandall, op. cit., p. 111; Willoughby, op. cit., 1: 200–202, infra, secs. 161-172.

53 President Wilson took the position that the agreement of Nov. 5, 1918, and earlier exchanges of notes, upon the basis of which the armistice of November 11, 1918, was concluded with Germany, rendered ratification of a treaty in accordance with those terms obligatory upon the United States. "I am ready," he said in a speech at Spokane, Washington, Sept. 12, 1919, "to fight from now until all the fight has been taken out of me by death to redeem the faith and promises of the United States." (Sen. Doc. No. 120, 66th Cong., 1st Sess., p. 173.) President Wilson and the German delegation agreed as to the obligation of the preliminary agreement but differed as to the concurrence of the treaty therewith. See also Wright, Minn. Law Rev., 4: 35. The Senate appears to have paid little attention to arguments derived from the obligation of the preliminary agreements, in considering either the Spanish treaty of 1898 or the German treaty of 1919.

54 Thus Spain insisted that the preliminaries of peace of Aug. 12, 1898, were a binding obligation and protested against proposed terms of the definitive treaty on the ground of conflict (Benton, Int. Law and Diplomacy of Spanish-American War, Baltimore, 1908, p. 244) and Germany protested against proposed terms of the treaty of Versailles on the ground of conflict with the preliminary exchange of notes of Nov. 5, 1918. (See Text of German note of May 29, 1919, Int. Conciliation, 1919, p. 1203, and Official Summary, 66th Cong., 1st Sess., Senate Doc. No. 149, p. 83.)

accordingly unless that view is very obviously erroneous, i.e., unless the agreement in question is obviously of sufficient permanence and importance to constitute a "treaty."

31. Treaty Provisions Ultra Vires from Operation of Constitutional Limitations.

When an alleged want of constitutional competence in the agreement-making power arises from the operation of an obscure constitutional limitation, the foreign nation would seem entitled to accept the ostensible competence of the agreement-making authority absolutely and to hold the nation accordingly. Thus in England, if the Crown in Council ratifies a treaty on its own responsibility, the other party is entitled to insist upon its validity, even though the treaty is of a character which, according to the law of the Constitution, should have been submitted to parliament before ratification, if indeed there are any such.55 So the United States is bound by all agreements ratified by the treaty-making power, even though it may subsequently appear that the treaty-making power acted in disregard of limitations imposed by the guarantees of the Constitution in favor of individual, state or other rights.5

Thus in negotiation of the Webster-Ashburton treaty involving a fixing of the Maine boundary and the cession to Great Britain of land claimed by that state, the British government was aware of the doubt which existed as to the competence of the United States treaty-making power to cede territory belonging to the state without that state's consent. They, therefore, refused to negotiate until assured by authority of the President that the constitutional difficulty had been eliminated, an assurance which was made possible by Maine's consent to the cession.57 So also, in 1854 France

55 Supra, note 49.

56" The fundamental laws of a state may withhold from the executive department the power of transferring what belongs to the state; but if there be no express provision of that kind, the inference is, that it has confided to the department charged with the power of making treaties, a discretion commensurate with all the great interests, and wants, and necessities of the nation. (Kent, Commentaries, 1: 166.)

57 "The negotiations for a convention to settle the boundary question can hardly be said to have made any positive progress, since last year. . The interest of both parties, undoubtedly, requires a compromise, and I have