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entered into by them, or where the other contracting state has performed acts in pursuance of the agreement, it is the duty of the state receiving the benefits, or the action of whose agent caused the performance of the acts mentioned, either to make proper compensation or to restore the former status as far as practicable. If the agent has clearly exceeded his powers in such a manner that this fact should have been known to the other party, there is no obligation upon the agent's state.

(c) Many treaties are made in order to bring to an end further use of force. The state is, however, held to be free to continue to resist or to agree upon terms. The use of force, if a proper means of redress, cannot be made to vitiate a contract resulting from its use. A state can enter into a perfectly valid contract which has been forced upon it, however disadvantageous its terms may be, provided it does not part with an essential to its existence. No state can be supposed to be willing to part with independence as a result of constraint, and, when this results, the contract is assumed to be vitiated by the constraint. In case constraint be imposed upon the person of the sovereign of a state or upon the person of a commander, or of an agent authorized to negotiate a treaty, the state which he represents is in no manner bound by his acts, and all such contracts are absolutely void. If the consent of an agent of a state is obtained through fraud, the contract resulting therefrom is not valid.

(d) A treaty which does not conform to international law and established usages may be void or voidable, as a treaty which has as an object the exercise of proprietary rights over the open sea, or a treaty contrary to the recognized rights of humanity, as for the establishment or protection of the slave trade.

FORM OF THE CONTRACT.

73. While no prescribed form is necessary, contracts between states are usually in the form of written agreements, signed by or in behalf of the treaty-making power of the states parties to the contract.

Agreements may even be made by the display of symbols by agents of a state, as in the raising of a white flag in token

of surrender. Verbal agreements between sovereigns have been held as binding upon states, particularly in earlier times, when the sovereign often had absolute power. Less formal agreements are sometimes made by the exchange of notes between agents of states.

In general, however, interstate contracts are of such importance that they are entered upon with much formality. Usually a preamble, containing the names of the heads of the states or their representatives, is followed by a statement of the reasons for the negotiation of the treaty. The body of the treaty ordinarily consists of numbered articles, setting forth the agreements to which the states have come. The stipulations in regard to ratification, duration, accession of other states, denunciation, and similar provisions, are usually followed by the signatures and seals of the negotiators.11

112 Pradier-Fodéré, Droit Int. Public, §§ 1086-1096. The usual form may be seen in the treaty between the United States and Great Britain to facilitate the construction of a ship canal, concluded November 18, 1901:

"The United States of America and His Majesty Edward the Seventh, of the United Kingdom of Great Britain and Ireland, and of the British Dominions beyond the Seas, King, and Emperor of India, being desirous to facilitate the construction of a ship canal to connect the Atlantic and Pacific Oceans, by whatever route may be considered expedient, and to that end to remove any objection which may arise out of the Convention of the 19th April, 1850, commonly called the Clayton-Bulwer Treaty, to the construction of such canal under the auspices of the government of the United States, without impairing the 'general principle' of neutralization established in article VIII of that Convention, have for that purpose appointed as their plenipotentiaries:

"The President of the United States, John Hay, Secretary of State of the United States of America ;

"And His Majesty Edward the Seventh, of the United Kingdom of Great Britain and Ireland, and of the British Dominions beyond the Seas, King and Emperor of India, the Right Honorable Lord Pauncefote, G. C. B., G. C. M. G., His Majesty's Ambassador Extraordinary and Plenipotentiary to the United States;

"Who, having communicated to each other their full powers, which were found to be in due and proper form, have agreed upon the following articles:

"[Here follows the body of the treaty.]

"Article V. The present treaty shall be ratified by the President of the United States, by and with the advice and consent of the Sen

While the above is the common form, treaties vary greatly in form. The order of signing was in early times often a subject of discussion. At present the most common order is in accord with the alphabetical order of the names of the states, and usually following the order in the French language, where several states are parties to the treaty. Sometimes the order is determined by lot. In the draft of the treaty for his own state, the representative of that state may, following the principle of the alternat, sign first.

RATIFICATION.

74. Ratification is the act by which the treaty-making power approves and confirms that which has been agreed upon by its authorized agent or agents.

The fundamental law of a state in many states prescribes the procedure in making and ratifying treaties. In monarchies the ratifying power is generally in the monarch, provided the treaty does not alienate territory or change the status of nationals,12 and in republics in some representative body.

In some cases ratification may not be necessary, as in cases where treaties are concluded by functionaries having treatymaking power. Usually, however, the signing of a treaty by the representatives of the states is an indication that they have reached an agreement. Whether this agreement will commend itself to the states by which they are accredited is to be determined by subsequent ratification. Many treaties are now concluded subject to ratification, even if the fundamental law of a state does not prescribe this method, and even if this condition. is not mentioned in the treaty. If no time for ratification is specified, a reasonable period is presumed to be allowed. Rat

ate thereof, and by His Britannic Majesty; and the ratifications shall be exchanged at Washington or at London at the earliest possible time within six months from the date hereof.

"In faith whereof the respective plenipotentiaries have signed this treaty and thereunto affixed their seals.

"Done in duplicate at Washington, the 18th day of November, in the year of Our Lord one thousand nine hundred and one.

"John Hay.
"Pauncefote.

12 Crandall, Treaties, Their Making and Enforcement.

[Seal.]
[Seal.]"

ification must be by the treaty-making power or by an authorized agent. It is generally held that it must be complete, for partial ratification would in effect be a new treaty. The form of ratification varies. Sometimes it may even be tacit, by fulfilling the terms of the treaty; but it is more often formal, by the exchange of documents, sometimes reciting the whole treaty, sometimes reciting merely the preamble, the names of the negotiators, the date of signing, etc.; i. e., the earlier and later clauses of the treaty to such an extent as to make its identification certain.

"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." 13

While ratification generally follows the negotiation of a treaty, it is not now maintained, as was formerly held by many, that ratification is legally or even morally obligatory. The United States Senate has on various occasions refused to ratify, or ratified an amended treaty, which was in effect a refusal to ratify, the agreement which the negotiators had made.1 Ratification may be refused for sufficient reason, though there may be differences of opinion as to what constitutes sufficient reason for such refusal.

13 Wilson & Tucker, Int. Law (5th Ed.) p. 212.

14 This was the case with certain reciprocity treaties at the end of the nineteenth century and with certain arbitration treaties in the early twentieth century. The Senate also modified the proposed treaty with Great Britain concerning the Nicaragua Canal, signed February 5, 1900.

"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." 15

Ratification makes the treaty binding. While there is some difference of opinion as to whether the date upon which a treaty becomes binding is the date of ratification, or the date of the signing of the treaty, the United States Supreme Court has held that after ratification, as between the governments, a treaty "is considered as concluded and binding from the date of signature," while, as regards persons, it is binding only from the date of ratification and proclamation.10 The proclamation or promulgation of a treaty or publication of the contents of a treaty may be delayed, as in the case of a secret treaty. The treaty is in such case binding on the state, but not upon its citizens, who are ignorant of its provisions. The method of making a treaty known is a matter of municipal law.

INTERPRETATION OF TREATIES.

In

75. Treaties should receive reasonable interpretation. case of doubt in regard to interpretation, the following rules have been generally accepted:

(a) When there is doubt as to the interpretation of the words of a treaty: (1) The words are to be interpreted in their usual sense, unless this involves an absurdity or is incompatible with the general provisions of the treaty; (2) words having more than one meaning are interpreted in the more general sense, rather than the technical sense, unless clearly used in the technical

18 Wilson & Tucker, Int. Law (5th Ed.) 211.

16 Haver v. Yaker, 9 Wall. 32, 19 L. Ed. 571. For full discussion, see 2 Butler, Treaty-Making Power of the United States, § 383.

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