The negotiation of treaties includes, (a) the international agreement upon the terms, (b) the drafting of the terms, (c) the signing, and (d) the ratification.
(a) The first step preparatory to the agreement is the submission of proof that the parties entering into the negotiations are duly qualified and authorized. As the sovereigns themselves do not now in person negotiate treaties,[272] it is customary for those who are to conduct such negotiations to be authorized by a commission generally known as full power. The negotiators first present and exchange their full powers. They may be somewhat limited in their action by instructions.[273] Often it is the diplomatic representatives who negotiate with the proper authorities of the state to which they are accredited. The negotiations are sometimes written, sometimes verbal, and are preserved in the procès verbaux. In case the negotiations are for any reason discontinued before the drafting of the terms of the agreement, it is customary to state the circumstances leading to this act in a protocol signed by all the negotiators. Sometimes this takes the name of a manifest or of a declaration.
(b) The draft of the treaty is usually, though not necessarily, of a uniform style. Many early treaties opened with an invocation to Deity. This is not the custom followed by the United States, however. The general form is to specify the sovereigns of the contracting states, the purpose of the agreement, and the names of the negotiators, with their powers. This constitutes the preamble. Then follow in separate articles the agreements entered into forming the body of the treaty, the conditions of ratification, the number of copies, the place of the negotiation, the signatures and seals of the negotiators. Sometimes other articles or declarations[274] are annexed or added, with a view to defining, explaining, or limiting words or clauses used in the body of the treaty. Ordinarily the same formula is followed as in the portion of the main treaty subsequent to the body in setting forth conditions of ratification, etc.
The order of the states parties to the treaty, and of the agents negotiating it, varies in the different copies. The copy transmitted to a given state party to the treaty contains the name of that state and of its agents in the first place, so far as possible. Each negotiator signs in the first place the copy of the treaty to be transmitted to his own state, and if the agents of more than one other state sign the treaty, they sign in alphabetical order of their states, in the original language of the convention. This is known as the principle of the alternat.
The following is the beginning and end of the Treaty of Washington relative to the Alabama Claims, etc., including the President's proclamation thereof:—[275]
"BY THE PRESIDENT OF THE UNITED STATES OF AMERICA
"A Proclamation
"Whereas a treaty, between the United States of America and her Majesty the Queen of the United Kingdom of Great Britain and Ireland, concerning the settlement of all causes of difference between the two countries, was concluded and signed at Washington by the high commissioners and plenipotentiaries of the respective governments on the eighth day of May last; which treaty is word for word, as follows:—
"'The United States of America and her Britannic Majesty, being desirous to provide for an amicable settlement of all causes of difference between the two countries, have for that purpose appointed their respective plenipotentiaries, that is to say: The President of the United States has appointed, on the part of the United States, as Commissioners in a Joint High Commission and Plenipotentiaries [here follow the names]; and her Britannic Majesty, on her part, has appointed as her High Commissioners and Plenipotentiaries [here follow the names].
"'And the said plenipotentiaries, after having exchanged their full powers, which were found to be in due and proper form, have agreed to and concluded the following articles:—
[Here follow 42 articles.]
"'Article XLIII
"'The present treaty shall be duly ratified by the President of the United States of America, by and with the advice 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.