TITLE IV. INTERNATIONAL COMPACTS. The interpretation and effect of contracts by a nation with parties other than another nation, is provided for by the Chapter on CONTRACTS, in Part V., entitled PRIVATE RIGHTS OF PERSONS. See a discussion of the consequences of non-execution of the engage ments of goverments relative to the payment of their public debt, in Revue de Droit Intern. et de Legis. Comp., 1869, vol. 1, no. 2, p. 275. CHAPTER XV. Treaties. XVI. Informal Compacts. CHAPTER XV. TREATIES. ARTICLE 188. "Treaty" defined. 189. Capacity to conclude treaty. 193. Ratification, when obligatory. 194. Notice of reasons of refusal to ratify. 195. Treaty negotiated contrary to minister's full power. 196, 197. Time of taking effect. 198. Treaty interfering with third party. 199. What provisions of this Code may be mod- 200. Demand of performance, when necessary. "Treaty" defined. 99 1 188. The term "treaty, as used in this Code, means a written agreement between two or more 2 nations for the performance or omission of an act creating, terminating, or otherwise affecting an international right or relation. 1 The term "conventions," which Wheaton, (Lawrence's ed., p. 460,) understands as restricted to executed agreements, seems no longer to be used with any uniformity in this limited sense. 2 Some authorities state that a treaty must be in writing. See Klüber, Droit des Gens, § 142; and 2 Phillimore's International Law, p. 64, and note m. 3 Fiore, (Nouveau Droit International, part I., chs. 1-4,) thinks that a nation cannot by treaty part with any of its essential powers. Capacity to conclude treaty. 189. Any two nations can make a treaty. The ratification of a treaty is a recognition of the nation with which it is made. Lawrence, Commentaire sur Wheaton, p. 196. Consent, how communicated. 190. The consent of a nation to a treaty can be communicated with effect only in the form,' and through the executive or other department, authorized by its law,' or through its public minister duly empowered. 1 E. g., constitutional requirements providing for the concurrent action of several departments. Klüber, § 142, p. 181, note b; Lawrence's Wheaton, p. 452, note 151; Id., 457. Heffter, Droit International, § 84. It is the practice of governments, in the drawing up of their treaties with each other, to vary the order of naming the parties, and that of the signatures of the plenipotentiaries, in the counterparts of the same treaty, so that each party is first named, and its plenipotentiary signs first, in the copy possessed and published by itself. And in treaties drawn up between parties using different languages, and executed in both, each party is first named, and its plenipotentiary signs first, in the copy executed in its own language. Instructions to Diplomatic Agents of United States, $ XX. In acts between several powers admitting the alternal, the order to be followed in signature is decided by lot. Protocol of Treaty of Vienna, Art. VIII., cited in Lawrence's Wheaton, p. 380. Bluntschli, (Droit International Codifié, § 178,) says, that instead of this rule, that of the alphabetic order of the initials of the several States is often followed. Treaty by state in revolution. 191. The executive or other departments of a nation which is in a state of revolution, if not in the peaceable possession of their powers, can make temporary treaties only. Klüber, Droit des Gens, & 142, p. 181, note a. Ratification, when necessary. 192. Ratification of a treaty by a nation is necessary to render it binding thereon in the following cases only: ' 1. Where such ratification is therein expressly made a condition; 2. Where the treaty is concluded by the executive or other department of the nation, and ratification thereof is, in such cases, required by its law; or, 3. Where the treaty is concluded through a public minister of the nation who is not authorized to dispense with such ratification, or who, being thus authorized, does not expressly dispense with the same.' 1 Several authorities apparently contend that ratification is necessary in all cases; Lawrence's Wheaton, p. 452, note 151; or at at least in all cases of treaties signed by plenipotentiaries. Speech of M. Guizot, Moniteur, Feb. 1, 1843; 1 Ortolan, Diplomatie de la Mer, 85–89. The rule uniformly followed in Great Britain, is, that a treaty does not become absolutely binding upon the signataries until it has been ratified. Speech of Mr. Gladstone, in Parliament, Aug. 10, 1870. 2 Lawrence's Wheaton, p. 455. Ratification is sometimes expressly annexed to the treaty, (Lawrence's 31 Fiore, Nour. Droit Intern., 476. dispensed with by a secret protocol Wheaton, p. 454,) and consequently forming part of it. It may be thought better to modify subdivision 3, by inserting "therein" before "expressly." Ratification, when obligatory. 193. A nation by whose public minister a treaty is concluded in conformity with his powers, is bound to ratify the same, if his powers contain an express agreement, authorized by the law of the nation, that it shall be ratified when so concluded; unless by the terms of the treaty its ratification is optional with such nation; or unless, before the time agreed on for its ratification, an event has occurred or been discovered which if occurring or discovered after its ratification would authorize such nation to rescind or refuse to perform it. Notice of reasons of refusal to ratify. 194. Where ratification is refused pursuant to the provisions of the last article, notice of such refusal, stating the reasons thereof, must be forthwith given to the other parties to the treaty. Treaty negotiated contrary to minister's full power. 195. The negotiation of a treaty by a public minister not in accordance with his powers' creates no obligations on the part of his nation to ratify it. 1 Even if the full power contains a promise to ratify all his acts. Lawrence's Wheaton, p. 447. Time of taking effect. 196. A treaty which is binding on a nation without ratification, is binding from the date of its signature, unless therein otherwise expressed. The same. 197. A treaty which requires ratification binds the ratifying nation' from the time of ratification,' unless therein otherwise expressed. 1 The present rule makes ratification retroact as regards the nation, but not as to persons and things within its jurisdiction. Lawrence's Wheaton, p. 453, note 152. The Supreme Court of the United States, in the case of Jecker v. Magee, held, that the principle of relation which, as respects the rights of either government, regards a treaty as concluded from the date of its signature, does not apply to private rights under it. As affecting these, it is not considered as concluded but from the exchange of ratification. New York Transcript, August 18, 1870. This is the case, independently of any auxiliary legislation necessary to carry the treaty into effect, unless otherwise provided therein. Lawrence's Wheaton, p. 457. Treaty interfering with third party. 198. If a treaty interferes with the rights, under a pre-existing treaty, of a nation other than a party to the new treaty, it is, to the extent of the interference, valid, as to such nation, only so far as it submits to the execution thereof. Bluntschli, § 414. What provisions of this Code may be modified by special treaty. 199. Any two or more nations may, by special compact, modify the application of any of the provisions of this Code, in respect to themselves, and persons and things within their exclusive jurisdiction, but not in respect to the other parties to the Code, or their members. No treaty between two or more nations should absolve either from obligations to other nations created or defined by this Code. Demand of performance, when necessary. 200. Except in respect to an act therein stipulated to be performed at a certain time, the performance of a treaty must be demanded before any nation, party thereto, can be placed in default. Heffter, § 94. Merger of preceding communications. 201. All communications, written or verbal, between the parties to a treaty, preceding its signature, and relating to the subject thereof, are merged in the treaty. This provision is from Lawrence's Wheaton, p. 442; extended to written communications, not referred to expressly, or by necessary implication. Extinguishment of obligations created by treaty. 202. An obligation created by treaty is extinguished, either, 1. By its full performance; or, 2. By renunciation of the party entitled to performance; or, 3. By the subsequent permanent impossibility of performance, without the fault of the party bound; or, 4. By fulfillment of the conditions, or the expiration of the time, expressed in the treaty for its extinguishment; or, 5. By breach of its conditions by the nation entitled to performance;' or, 6. By rescission' of the treaty, through common consent. |