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."[276] In the United States it has frequently happened that the Senate has not approved of treaties, and they have therefore failed of 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.