presumption where the exchange of notes took place before the Senate had acted. Thus intrepretive agreements relating to the treaties with Mexico (1848) and Great Britain (1850) not having been exchanged until after ratification, though considered valid by foreign nations, 32 were questioned by the United States. On the other hand, the interpretive notes exchanged before the Senate had acted on the Swiss treaty of 1855 were considered valid. In this case the notes in question had been submitted to the Senate but had not been formally acted on by that body.34 28. Reservations Tacitly Consented to. 33 Tacit consent to reservatons is also possible, but it seems doubtful whether the United States would be bound by a reservation submitted by a foreign power unless the Senate has had an opportunity to object. The signature and exchange of ratifications of treaties are formal ceremonies offering suitable opportunities for the proposal of reservations. It would appear that if such proposals are stated as conditions of consent by the proposing power, on either of these occasions, lack of protest within a reasonable time At the Hague Conby others could be construed as tacit consent. ferences, the numerous reservations offered upon signature of the Conventions and maintained by the power upon ratification were accorded tacit consent in this manner.35 Other signatories are, 32 Mexico and Great Britain respectively asserted the validity of these agreements. Moore, 5: 205; Lord Clarendon to Mr. Buchanan, May 2, 1854, Br. and For. St. Pap., 46: 267, Moore, 3: 138. The Mexican agreement is printed after the Treaty in Malloy, Treaties, etc., p. 1119. 33 Supra, note 30. 34 Supra, note 28. 85 The Marie Glaeser, L. R. (1914), P. 218; The Appam (1916), 243 U. S. In most cases reservations were offered at signature 124, infra, note 38. and affirmed at ratification though sometimes they were offered for the first time at ratification. Thus the Senate resolution advising ratification of the 1907 Hague Convention for the Pacific Settlement of International Disputes affirmed the declaration made by the American plenipotentiaries on signature and added a new reservation. Malloy, Treaties, etc., p. 2247. See discussion, Scott, Reports of the Hague Conference, xxviii, and D. H. Miller, Reservations to Treaties (p. 145), who considers silent acquiescence at exchange of ratifications, "express acceptance." Ibid., pp. 141, 145, 160. For reservations with statement of the method of presentment see Carnegie Endowment edition of the Hague Conventions. however, at liberty to object to reservations. Thus the powers objected to a reservation to the treaty of Versailles proposed by China upon signature and, as a result, China refused to sign the treaty. Sometimes the treaty itself has stated that it is not subject to reservation. Thus article 65 of the Declaration of London provided "The provisions of the present Declaration form an indivisible whole." 87 36 The United States Senate is presumed to be aware of reservations made by foreign powers on signature, before it consents to ratification, consequently the United States is bound by such reservations. Thus, said the Supreme Court of a reservation attached by the King of Spain to his ratification of the Florida cession treaty of 1819:38 "It is too plain for argument that where one of the parties to a treaty at the time of its ratification annexes a written declaration explaining am-. biguous language in the instrument or adding a new and distinct stipulation 86 Am. Year Book, 1919, p. 93. 87 Upon this, the drafting committee, of which M. Renault was chairman, commented as follows: "This Article is of great importance, and is in conformity with that which was adopted in the Declaration at Paris. The rules contained in the present Declaration relate to matters of great importance and great diversity. They have not all been accepted with the same degree of eagerness by all the Delegations; some concessions have been made on one point in consideration of concessions obtained on another. The whole, all things considered, has been recognized as satisfactory. A legitimate expectation would be defeated if one Power might make reservations on a rule to which another Power attached particular importance." Naval War College, Int. Law Topics, 1909, p. 155. Protocol No. 24 of the Paris Congress of 1856 provided with reference to the Declaration of Paris, "On the proposition of Count Walewski, and recognizing that it is for the general interest to maintain the indivisibility of the four principles mentioned in the declaration signed this day, the plenipotentiaries agree that the powers which shall have signed it, or which shall have acceded to it, can not hereafter enter into any arrangement in regard to the application of the right of neutrals in time of war, which does not at the same time rest on the four principles which are the object of the said declaration." This was recognized as a binding obligation on the powers and as a result the United States being unwilling to accept one provision of the Declaration was excluded from the treaty, a situation which proved most disadvantageous upon the outbreak of the Civil War five years later. Ibid., 1905, p. 110. 38 Doe v. Braden, 16 How. 635, 656 (1853). supra, note 28. See also Crandall, p. 88, and and the treaty is afterwards ratified by the other party with the declaration attached to it, and the ratifications duly exchanged-the declaration thus annexed is a part of the treaty and as binding as if it were inserted in the body of the instrument. The intention of the parties is to be gathered from the whole instrument as it stood when the ratifications were changed." ex In case foreign reservations are proposed upon exchange of ratifications, the Senate has no opportunity to object unless the reservations are especially submitted to it by the President. President Jefferson thus submitted Napoleon's reservation to the treaty of 1801 after exchange of ratifications and the Senate consented." Doubtless, prompt notification of Senatorial objection, had it been given, would have relieved the United States of responsibility under the treaty, in spite of the fact that ratifications had been exchanged. In multi-partite treaties a formal exchange of ratifications is often dispensed with and provision is made for deposit of ratifications at a central bureau. This was provided in the African Slave Trade, Algeciras, Hague, Versailles and other Conventions. With such provisions, qualified ratifications may be deposited in the 39 Crandall, op. cit., p. 86, and supra, note 27. 40 "The present Treaty of which the French and English texts are both authentic, shall be ratified. "The deposit of ratifications shall be made at Paris as soon as possible. 'Powers of which the seat of the Government is outside Europe, will be entitled merely to inform the Government of the French Republic through their diplomatic representative at Paris that their ratification has been given; in that case they must transmit the instrument of ratification as soon as possible. "A first procès-verbal of the deposit of ratifications will be drawn up as soon as the Treaty has been ratified by Germany on the one hand, and by three of the Principal Allied and Associated Powers on the other hand. "From the date of this first procès-verbal the Treaty will come into force between the High Contracting Parties who have ratified it. For the determination of all periods of time provided for in the present Treaty this date will be the date of the coming into force of the Treaty. "In all other respects the Treaty will enter into force for each Power at the date of the deposit of its ratification. "The French Government will transmit to all the signatory Powers a certified copy of the procès-verbaux of the deposit of ratifications." 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 1890.2 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 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 aet, 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." "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. |