intended that the power vested in the regularly constituted organ should extend to all the usual subjects of international regulation, and should be sufficient to meet any exigency arising from contact with other states. 83. Powers of the Negotiators and the Right of Ratification. -The powers of the special agents-for it is seldom practicable for the treaty-making organs of two states to meet in conference -appointed to conduct and conclude negotiations, are defined by special commissions and instructions. By the early writers on international law, living at a time when the theory of personal sovereignty generally obtained, and the negotiator was the immediate agent of the sovereign, the rule of the Roman law, that the principal is bound by the agent acting within his powers,1 was applied to treaty negotiations. The advantages of entrusting full and general powers to the negotiators, and the importance of the trust, have led recent writers quite generally to admit the right of ratification, even if no express reservation be made in the treaty or full powers. A reservation of this right is now by the practice of nations to be read into the full powers of the negotiator. A right of ratification implies a right of refusal. Accordingly, the qualification imposed by some writers, that, when the negotiator has acted within his powers and specific instructions, ratification may be refused only for real and substantial reasons, is of good faith only; and it can have no application unless the powers and instructions of the plenipotentiary are given by the full treaty-making organ of the state. In the United States, for instance, a treaty is regularly negotiated on the authority of the President, while it can be ratified only with the authorization of the Senate. The plenipotentiary, commissioned and instructed by the President alone, acts on the authority not of the treatymaking power, but on that of a separate branch of it only. The maxim of the early Roman law, "qui cum alio contrahit, vel est vel debet esse non ignarus condicionis ejus," applies in the making of treaties. To know the powers of him with whom negotiations are conducted requires a knowledge not only of his I See Pothier, Obligations, Pt. I, c. I, Art. V, §4, (Evans' translation, I, 47). 2 See in this relation Gentilis, Bk. III, c. XIV; Grotius, Bk.II, c. XI, §12; Pufendorf, Bk. III, c. IX, §2; Vattel, Bk. II, c. XII, §156. 3 Ulpian, Digest of Justinian, Lib. L, Tit. XVII (De diversis regulis juris antiqui), 19. special mandate and powers, the exhibition of which may always be demanded before the opening of the negotiations, but also of the fundamental law or constitution of the state which he professes to represent, and of any limitations which may result from an incomplete sovereignty. Many instances are recorded of delays in negotiations as the result of defective powers. The proceedings of the Congress of Westphalia afford an early instance. The powers of the French envoys were considered defective because they gave authority merely to negotiate but not to sign, and were signed by the minor king without any reference to the regency. A recent instance is found in the negotiations for peace between China and Japan in 1895, in which the powers first presented by the plenipotentiaries on the part of China were unsatisfactory to the Japanese government.5 The protocol of August 12, 1898, between the United States and Spain, was signed by Mr. Cambon, on the part of Spain, in virtue of special powers received by telegraph, with the understanding that documentary full powers in regular and due form would later be communicated to the United States." §4. Essentials of the Validity of Treaties.-Treaties are contracts between states. To their validity it is essential that the contracting parties have power over the subject-matter, that consent be reciprocally and regularly given, and that the object of the treaty be possible and lawful under the accepted principles of international law. §5. Reality of Consent.-Consent is considered as freely given in the case of treaties under conditions that might render contracts between private individuals voidable. In the negotiation of treaties between independent states, the parties are supposed to be on the same footing with equal opportunities of ascertaining the facts. Treaties of peace cannot be avoided by the unsuccess 4 Garden, Traités de Paix, I, 140. 5 For. Rel., 1894, App., I, 97. 6 The documentary full powers, dated August 11, 1898, were communicated by Mr. Cambon to the Secretary of State, August 30, 1898. For. Rel., 1898, pp. 825-827. 7 "If suppressio veri abrogated treaties to the extent it abrogates contracts, few treaties would stand." Wharton, Int. Law Digest, II, 36. During the negotiations leading up to the Webster-Ashburton treaty, a map supposed to be very favorable to the British contention as to the northeastern boundary was unearthed by Jared Sparks in his private re ful party on the ground that concessions have been extorted by threat of a continuation of hostilities. This rule must prevail so long as it is recognized that rights can be acquired through the use of force. "It was her own free choice to prefer a certain and immediate loss, but of limited extent, to an evil of a more dreadful nature, which, though yet at some distance, she had but too great reason to apprehend." Phillimore draws a possible analogy in this respect to a private contract entered into to avoid, or to stop, litigation, which, although the party was induced to enter into it through the apprehension of delay, expense, and the uncertain event of a lawsuit, is nevertheless binding.10 But force or intimidation applied to the person of the negotiator, in whom is vested the full and final treaty-making power of the stateand unless the power is thus fully and finally vested, the right of ratification renders the use of force futile-vitiates the act. Such a case is hardly to be contemplated at the present time.11 searches in Paris. It was shown by Mr. Webster to the commissioners from Maine, but not to Lord Ashburton. Subsequently, it became public by being sent to the Senate. In the midst of the popular outcry which followed in England, an English diarist records (Greville, February 9, 1843): "At the same time, our successive Governments are much to blame in not having ransacked the archives at Paris, for they could certainly have done for a public object what Jared Sparks did for a private one, and a little trouble would have put them in possession of whatever that repository contained." Lord Ashburton, in a communication of February 7, 1843, said: "The public are very busy with the question whether Webster was bound in honor to damage his own case by telling all. I have put this to the consciences of old diplomatists without getting a satisfactory answer. My own opinion is that in this respect no reproach can fairly be made." Id., II, 177, 180. Not only was the map a doubtful piece of evidence, but there existed at the time in the British foreign office the veritable copy of the Mitchell map, with the red line, used in the negotiations of 1782. Moore, Int. Law Digest, V, 719. 8 See the decision of The Hague Tribunal of Arbitration of 1903, sustaining the claim of the "war" powers to preferential treatment in the payment of their claims against Venezuela, Penfield's Report, 95, 984. 9 Vattel, Bk. IV, c. IV, §37. See also Grotius, Bk. II, c. XVII, §19. 10 Int. Law, (2 ed.), II, 71, 72. II Text writers, with great uniformity, cite as an instance the concessions extorted from Ferdinand VII at Bayonne. As to the circumstances under which the treaty was signed by Santa Anna, dictator of Mexico, after his capture at San Jacinto, April 21, 1836, in which he acknowledged the independence of Texas, see annual message of President Polk, December 8, 1846, Richardson, Messages and Papers of the Presidents, IV, 480. As to the treaty of alliance between Japan and §6. Form. The importance of the subject-matter, the frequent changes in the personnel of the agencies through which treaties are concluded, the inability to confirm by witness the utterances of a state, render it even more necessary that treaties between nations should be carefully expressed in writing than in case of contracts between private individuals.12 They often run for long periods of time. In a return of the most-favored-nation clauses in treaties of commerce and navigation (a class of treaties not of the most permanent character) between Great Britain and other powers, in force, January 1, 1907, there are included treaties signed with Sweden, April 11, 1654, July 17, 1656, October 21, 1661, and February 5, 1766, and with various other powers during the seventeenth and eighteenth centuries.13 Although no particular form is essential to the validity, it is customary in case of formal treaties to make out and sign under seal as many counterparts as there are parties, one counterpart to be retained by each. In case of two parties only, which have no common language, each counterpart is regularly made out in the languages of both. The texts may appear on separate sheets but more often they appear in parallel columns or on opposite pages, the text in the language of the party by which the counterpart is to be retained occupying the left hand column or page. Likewise, with the development of the principle of the equality in law of states, precedence in the enumeration of the negotiators in the preamble and in the signatures is given in the particular counterpart to the state by which it is to be retained. Otherwise the two instru Korea, concluded at Seoul, August 26, 1894, see Douglas, Europe and the Far East, 307, 310; For. Rel., 1894, App. I, 41, 56, 93. 12 F. de Martens cites, as an instance of an oral treaty, the alliance of 1697 entered into at Pillau between Peter the Great, of Russia, and Frederick III, Elector of Brandenburg. Droit Int. (Léo's translation), I, §111. 13 Parl. Papers, Com. No. 3, (1907) Cd. 3395. Prof. Nys refers to a treaty between the King of Babylon and the King of Egypt, concluded in the fifteenth century before our era, which was involved in a controversy of recent date in the Near East. Le Droit Int., III, 18. 14 For the development of the custom of the alternat, see G. F. Von Martens, Law of Nations, (Cobbett's translation), 140. "France and Great Britain established it as a rule, in 1456, 1551, 1559, to yield the precedence to each alternately." Id., 140. See, also, Phillimore, Int. Law (2 ed.), II, 59. Article VII of the Regulation signed by the plenipotentiaries of the powers represented at the Vienna Congress, March 19, 1815, and which forms Annex XVII to the general treaty signed June 9, 1815, provides that in acts or treaties between several powers which admit the al ments are supposed to be identical. In case of several parties, having various languages, the instrument is often drawn up in only one language, customarily in Europe, the French, formerly the Latin. Precedence is given in the particular counterpart to the party by which it is to be retained, the order of the other contracting parties being alphabetical or determined by lot. If the parties are numerous, not infrequently one original only is signed, which is deposited at a place specified in the treaty, and each of the contracting parties accepts, in lieu of an original, a duly certified copy.15 The ratification of each party is not only attached to the instrument retained by it, but, for the assurance of the other contracting party or parties, is also attached to an exact copy of the retained instrument, which is exchanged for a similar copy from the other party, or, in case of several parties, is deposited at such place as is designated in the treaty. Accordingly, each state, in case of two parties only, has regularly not only the original counterpart with its own ratification attached, but a copy of the counterpart retained by the other party with the latter's ratification attached. A protocol signed by the plenipotentiaries by whom the exchange is made records the act.16 Although these formalities are usually observed, a treaty no less perfect may be effected by a mere exchange of notes, or declarations, if authorized by the full treaty-making organs of the two states with power over the subject-matter. The denomination of the instrument is not an essential. The term protocol is regularly applied to a record, or minute, of the proceedings of a conference between plenipotentiaries," or of an agreement between plenipotentiaries as to the result of their negotiations or as to the basis of future negotiations. It is also often used to denominate an ex ternity the order to be observed in the signatures of ministers shall be decided by ballot. The general treaty was signed by the plenipotentiaries, alphabetically according to states. Hertslet's Map of Europe by Treaty, I, 63. 15 The various conventions signed at The Hague Conferences of 1899 and 1907, the Geneva Conference of 1906, and the Algeciras Conference of 1906, may be noted as examples. 16 As to the duties of the college of fecials, and the forms observed by the early Romans in the conclusion of treaties of alliance and peace, see Mommsen, Manuel des antiquités romaines, VII, Droit public romain (Traduction de l'allemand par Girard), 209; Larivière, Traités conclus par Rome, 23, 29; Hill, History of European Diplomacy, I, 10; Phillipson, Int. Law and Custom of Ancient Greece and Rome, I, 375-419. 17 The term procès-verbal is equally applicable. |