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and consent of the Senate thereof, and by her Britannic Majesty; and the ratifications shall be exchanged either at · Washington or at London within six months from the date hereof, or earlier if possible.
“In faith whereof, we, the respective plenipotentiaries, -- have signed this treaty and have hereunto affixed our seals. - “Done in duplicate at Washington the eighth day of May, in the year of our Lord one thousand eight hundred and seventy-one.'
[Here follow the seals and signatures.]
“And whereas the said treaty has been duly ratified on both parts, and the respective ratifications of the same were exchanged in the city of London, on the seventeenth day of June, 1871, by Robert C. Schenck, Envoy Extraordinary and Minister Plenipotentiary of the United States, and Earl Granville, her Majesty's Principal Secretary of State for Foreign Affairs, on the part of their respective governments:
“Now, therefore, be it known that I, Ulysses S. Grant, President of the United States of America, have caused the said treaty to be made public, to the end that the same, and every clause and article thereof, may be observed and fulfilled with good faith by the United States and the citizens thereof.
“In witness whereof, I have hereunto set my hand and caused the seal of the United States to be affixed.
“ Done at the City of Washington this fourth day of July, in the year of our Lord one thousand eight hundred and seventy-one, and of the Independence of the United States the ninety-sixth.
“U. S. GRANT. “By the President:
“HAMILTON Fish, Secretary of State.”
There is no diplomatic language, though various languages have from time to time been more commonly used. In early treaties and diplomatic works Latin was very common, and it was used so late as the Treaty of Utrecht in 1713. Spanish prevailed for some years toward the end of the fifteenth century. From the days of Louis XIV., when the French particularly became the court language, it has been widely used in congresses and treaties. Frequently, when used, there have been inserted in the treaties provisions that the use of French should not be taken as a precedent. The French language is, however, commonly employed in congresses in which a considerable number of different languages are represented, and the original forms of the treaties are drawn in French. During the nineteenth century this has been very common, as in the acts of the Congress of Vienna, 1815; Aix-la-Chapelle, 1818 ; Paris, 1856 ; Berlin, 1878 and 1885; Brussels, 1890. Even other states of Europe, in making treaties with Asiatic and African states, have agreed upon French as the authoritative text for both states. In some of the treaties of the United States and the Ottoman Porte, the French language is used.
It is customary, when the treaty is between states having different official languages, to arrange for versions in both languages in parallel columns, placing at the left the version in the language of the state to which the treaty is to be transmitted.
(c) In signing the treaty each representative signs and seals in the first place the copy to be sent to his own state. The order of the other signatures may be by lot or in the alphabetical order of the states represented. The signing of the treaty indicates the completion of the agreement between those commissioned in behalf of the states concerned. This does not irrevocably bind the states which the signers represent, though the fact that its representative has signed a treaty is a reason for ratification which cannot be set aside except for most weighty cause.
(d) Ratification is the acceptance by the state of the terms of the treaty which has been agreed upon by its legally qualified agent. The exchange of ratifications is usually provided for in a special clause, e.g. - The present treaty shall be ratified, and the ratifications exchanged at ... as speedily as possible.” By this clause the state reserves to itself the right to examine the conditions before entering into the agreement. At the present time it is held that even when not expressed, the “reserve clause " is understood.
The ratification conforms to the domestic laws of each state. Ordinarily it is in the form of an act duly signed and sealed by the head of the state. In the act of ratification the text of the treaty may be reproduced entire, or merely the title, preamble, the first and last articles of the body of the treaty, the concluding clauses following the last article, the date, and the names of the plenipotentiaries.
In many states prior approval of the treaty by some legislative body is necessary. In the United States the Constitution provides that 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.”1 In the United States it has frequently happened that the Senate has not approved of treaties, and they have therefore failed of
1 Art. II., $ 2, 2.
ratification. This was the fate of the Fishery Treaty with Great Britain in 1888.
The ratification may be refused for sufficient reason. Each state must decide for itself what is sufficient reason. The following have been offered at various times as valid reasons for refusal of ratification : (1) error in points essential to the agreement, (2) the introduction of matters of which the instructions of the plenipotentiaries do not give them power to treat, (3) clauses contrary to the public law of either of the states, (4) a change in the circumstances making the fulfillment of the stipulations unreasonable, (5) the introduction of conditions impossible of fulfillment, (6) the failure to meet the approval of the political authority whose approval is necessary to give the treaty effect, (7) the lack of proper credentials on the part of the negotiators or the lack of freedom in negotiating.
The exchange of ratifications is usually a solemn, i.e. highly formal, ceremony by which parties to the treaty or convention guarantee to each other the execution of its terms. As many copies of the act of ratification are prepared by each state as there are state parties to the treaty. When the representatives of the states assemble for the exchange of ratifications, they submit them to each other. These are carefully compared, and if found in correct form, they make the exchange and draw up a procès verbal of the fact, making as many copies of the procès verbal as there are parties to the treaty. At this time also a date for putting into operation the provisions of the treaty may be fixed. Sometimes clauses explanatory of words, phrases, etc., in the body of the treaty are agreed upon.
Such action usually takes the form of a special procès verbal or protocol.
Unless there is a stipulation as to the time when a treaty becomes effective, it is binding upon the signatory states from the date of signing, provided it is subsequently ratified.
A state may assume a more or less close relation to the agreements contained in treaties made by other states, by measures less formal than ratification. These measures are commonly classed as acts of, (1) approbation, by which a state without becoming in any way a party to the treaty assumes a favorable attitude toward its provisions, (2) adhesion, by which a state announces its intention to abide by the principles of a given treaty without becoming party to it, and (3) accession, by which a state becomes a party to a treaty which has already been agreed upon by other states.
NOTE. After the completion of the negotiation it is customary to promulgate and publish the treaty or convention. Both these acts are matters of local rather than international law. The promulgation is the announcement by the chief of the state that the treaty or convention has been made, and the publication is the official announcement of the contents of the treaty or convention. See p. 204.
$ 84. Validity of Treaties Four conditions are very generally recognized as essential to the validity of a treaty.
(a) The parties to the treaty must have the international capacity to contract, i.e. ordinarily they must be independent states.