§ 509. Since International Law lays down no rules concerning the form of treaties, there exist no rules concerning the arrangement of the parts of written treaties. But the following order is usually observed. A first part, the so-called preamble, comprises the names of the heads of the contracting States, of their duly authorised representatives, and the motives for the conclusion of the treaty. A second part consists of the primary stipulations in numbered articles. A third part consists of miscellaneous stipulations concerning the duration of the treaty, its ratification, the accession of third Powers, and the like. The last part comprises the signatures of the representatives. But this order is by no means necessary. Sometimes, for instance, the treaty itself does not contain the very stipulations upon which the contracting parties have agreed, such stipulations being placed in an annex to the treaty. It may also happen that a treaty contains secret stipulations in an additional part, which are not made public with the bulk of the stipulations.[868]
[868] The matter is treated with all details by Pradier-Fodéré, II. §§ 1086-1096.
V RATIFICATION OF TREATIES
Grotius, II. c. 11, § 12—Pufendorf, III. c. 9, § 2—Vattel, II. § 156—Hall, § 110—Westlake, I. pp. 279-280—Lawrence, § 132—Phillimore, II. § 52—Twiss, I. § 214—Halleck, I. pp. 276-277—Taylor, §§ 364-367—Moore, V. §§ 743-756—Walker, § 30—Wharton, II. §§ 131-131A—Wheaton, §§ 256-263—Bluntschli, §§ 420-421—Heffter, § 87—Gessner in Holtzendorff, III. pp. 15-18—Ullmann, § 78—Bonfils, Nos. 824-831—Pradier-Fodéré, II. Nos. 1100-1119—Mérignhac, II. pp. 652-666—Nys, III. pp. 28-36—Rivier, II. § 50—Calvo, III. §§ 1627-1636—Fiore, II. No. 994, and Code, No. 750—Martens, I. §§ 105-108—Wicquefort, "L'Ambassadeur et ses fonctions" (1680), II. Section XV.—Jellinek, "Die rechtliche Natur der Staatenverträge" (1880), pp. 53-56—Nippold, op. cit. pp. 123-125—Wegmann, "Die Ratifikation von Staatsverträgen" (1892).
Conception and Function of Ratification.
§ 510. Ratification is the term for the final confirmation given by the parties to an international treaty concluded by their representatives. Although a treaty is concluded as soon as the mutual consent is manifest from acts of the duly authorised representatives, its binding force is as a rule suspended till ratification is given. The function of ratification is, therefore, to make the treaty binding, and, if it is refused, the treaty falls to the ground in consequence. As long as ratification is not given, the treaty is, although concluded, not perfect. Many writers[869] maintain that, as a treaty is not binding without ratification, it is the latter which really contains the mutual consent and really concludes the treaty. Before ratification, they maintain, there is no treaty concluded, but a mere mutual proposal agreed to to conclude a treaty. But this opinion does not accord with the real facts.[870] For the representatives are authorised and intend to conclude a treaty by their signatures. The contracting States have always taken the standpoint that a treaty is concluded as soon as their mutual consent is clearly apparent. They have always made a distinction between their consent given by representatives and their ratification to be given afterwards, they have never dreamt of confounding the two and considering their ratification their consent. It is for that reason that a treaty cannot be ratified in part, that no alterations of the treaty are possible through the act of ratification, that a treaty may be tacitly ratified by its execution, that a treaty always is dated from the day when it was duly signed by the representatives and not from the day of its ratification, that there is no essential difference between such treaties as want and such as do not want ratification.
[869] See, for instance, Ullmann, § 78; Jellinek, p. 55; Nippold, p. 123; Wegmann, p. 11.
[870] The matter is very ably discussed by Rivier, II. pp 74-76.
Rationale for the Institution of Ratification.
§ 511. The rationale for the institution of ratification is another argument for the contention that the conclusion of the treaty by the representatives is to be distinguished from the confirmation given by the respective States through ratification. The reason is that States want to have an opportunity of re-examining not the single stipulations, but the whole effect of the treaty upon their interests. These interests may be of various kinds. They may undergo a change immediately after the signing of the treaty by the representatives. They may appear to public opinion in a different light from that in which they appear to the Governments, so that the latter want to reconsider the matter. Another reason is that treaties on many important matters are, according to the Constitutional Law of most States, not valid without some kind of consent of Parliaments. Governments must therefore have an opportunity of withdrawing from a treaty in case Parliaments refuse their recognition. These two reasons have made, and still make, the institution of ratification a necessity for International Law.