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The Obligation to Ratify Treaties

Published online by Cambridge University Press:  04 May 2017

John Eugene Harley
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Extract

One of the earliest examples of a sort of ratification is found in the treaty between Justinian and the Persian King, Chosroes, in 561 A. D. In this case the sovereigns agreed to accept that which their plenipotentiaries had promised and agreed upon. The French-Swiss alliance of May 28, 1777, was sanctioned by solemn oaths. It was the custom in earlier times to take hostages to insure ratification; this Grotius believed entirely proper. The oath gave way to a mere act or declaration of ratification.

Grotius likened a plenipotentiary to a mandatory, holding that all agreements reached by him were binding upon the sovereign from the time of signature, unless the secret instructions were transcended. Thus he regarded ratification as a mere form, not affecting the validity of the treaty. Likewise Martens, writing in 1789 at the time of the adoption of the Constitution of the United States, believed that if a mandatory had not exceeded his secret instructions, all that he agreed to was binding upon the state represented, and that the law of nations required no particular ratification (ratification particulière). Pufendorf regarded treaties valid from signature and thought ratification superfluous.

Type
Research Article
Information
American Journal of International Law , Volume 13 , Issue 3 , July 1919 , pp. 389 - 405
Copyright
Copyright © American Society of International Law 1919

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References

1 Du Mont, Supplement au Corps Universale, II, 197.

2 Wegmann, Die Ratifikation von Staatsvertraegen, p. 3.

3 De Jure Belli ac Pacts, III, 20, 52.

4 Droit des Gens, Art. 48.

5 De Jure Naturœ et Gentium, lib. III, cap. IX, art. 2.

6 Staatsvertraege, p. 4, note 9.

7 International Law, 7th ed., p. 340.

8 Pradier-Fodére’s edition of Grotius, ftn., p. 144.

9 Droit International Public, p. 689, 4th ed., by Boeck, 1910.

10 Proceedings of the International Naval Conference, British State Papers, Miscellaneous No. 5 (1909), p. 375.

11 Quoted by Wharton, International Law Digest, II, p. 6.

12 Richardson, Messages and Papers, 1, pp. 194–195.

13 6 MS. Dom. Let., 251; quoted by Moore, Digest, V, p. 193.

14 American State Tapers, Foreign Relations, V, p. 783.

15 Constitutional Law of England, p. 534, 2d ed. (1915).

16 Dodd, Modern Conatitutions, I, 292.

17 Ibid., p. 137.

18 Dodd, Modern Constitutions, Vol. II, p. 5

19 Ibid., Vol. I, p. 88.

20 Ibid., pp. 330–331.

21 Dodd, Modern Constitutions, p. 165.

22 Ibid., II, p. 163.

23 Geffken’a Heffter, note, p. 201.

24 Hall, International Law, 7th ed., p. 332.

25 Other examples of the Executive withholding treaties from the Senate are the treaty with Mexico, March 21, 1853, relative to a passage across the Isthmus of Tehuantepec; an extradition treaty with Colombia, March 30, 1872; and a trade-mark convention with Switzerland, February 14, 1885.

26 American State Papers, Foreign Relations, II, 624.

27 Madison to Yrujo, October 15, 1804, American State Papers, Foreign Relations, II, 625; the conditional ratification referred to is the Jay Treaty of 1795.

28 American State Papers, Foreign Relations, IV, 657.

29 De Onis to Adams, March 10, 1819, American State Papers, Foreign Relations, IV, p. 659.

30 Instructions, VIII, 343.

31 American State Papers, Foreign Relations, IV, 673.

32 Upon being informed by Rush, the American Minister at London, that the special envoy, General Vives, had told Lord Castlereagh that he should be able to convince the American Government that De Onis had exceeded his instructions, and in answer to a question, Adams replied: “I said that he [De Neuville] had told me so [that De Onis had not exceeded his instructions]. Onis had told me that by his instructions he could have ceded the Kingdom of Mexico. The Marquis of Casa Yrujo had told Mr. Erving ten times that Onis had 'carte blanche.' The Duke of San Fernando did not pretend that Onis had transcended his instructions, and how could he?” (J. Q. Adams, Memoirs, IV, 466.)

33 Mémoires pour servir a l’histoire de mon temps, VI, p. 161.

34 Wegmann, Staatsvertraege, pp. 34–35.

35 Ratifikation, p. 216.

38 Bonfils, Manuel de Droit International Public, p. 532, 16th ed.

37 Executive Journal, VII, 7, 433, 462.

38 See letter of Secretary Evarts to President Hayes, March 8, 1880, Senate Ex. Doc, 112, 46th Cong., 2d Sess.

39 Executive Journal, United States Senate, XXVI, 446.

40 Ibid., XXVI, 467.

41 Ibid., XXXI, 102–105.