§ 517. It follows from the nature of ratification as a necessary confirmation of a treaty already concluded that ratification must be either given or refused, no conditional or partial ratification being possible. That occasionally a State tries to modify a treaty in ratifying it cannot be denied, yet conditional ratification is no ratification at all, but equivalent to refusal of ratification. Nothing, of course, prevents the other contracting party from entering into fresh negotiations in regard to such modifications; but it must be emphasised that such negotiations are negotiations for a new treaty,[879] the old treaty having become null and void through its conditional ratification. On the other hand, no obligation exists for such party to enter into fresh negotiations, it being a fact that conditional ratification is identical with refusal of ratification, whereby the treaty falls to the ground. Thus, for instance, when the United States Senate on December 20, 1900, in consenting[880] to the ratification of the Hay-Pauncefote Treaty as regards the Nicaragua Canal, added modifying amendments, Great Britain did not accept the amendments and considered the treaty fallen to the ground.
[879] This is the correct explanation of the practice on the part of States, which sometimes prevails, of acquiescing, after some hesitation, in alterations proposed by a party to a treaty in ratifying it; see examples in Pradier-Fodéré, II. No. 1104, and Calvo, III. § 1630.
[880] It is of importance to emphasise that the United States' Senate, in proposing an amendment to a treaty before its ratification, does not, strictly speaking, ratify such treaty conditionally, since it is the President, and not the Senate, who possesses the power of granting or refusing ratification; see Willoughby, "The Constitutional Law of the United States" (1910), I. p. 462, note 14. The President, however, according to article 2 of the Constitution, cannot grant ratification without the consent of the Senate, and the proposal of an amendment to a treaty on the part of the Senate, therefore, comprises, indirectly, the proposal of a new treaty.
Quite particular is the case of a treaty to which a greater number of States are parties and which is only partially ratified by one of the contracting parties. Thus France, in ratifying the General Act of the Brussels Anti-Slavery Conference of July 2, 1890, excepted from ratification articles 21 to 23 and 42 to 61, and the Powers have acquiesced in this partial ratification, so that France is not bound by these twenty-three articles.[881]
[881] See Martens, N.R.G. 2nd Ser. XXII. (1897), p. 260.
But it must be emphasised that ratification is only then partial and conditional if one or more stipulations of the treaty which has been signed without reservation are exempted from ratification, or if an amending clause is added to the treaty during the process of ratification. It is therefore quite legitimate for a party who has signed a treaty with certain reservations as regards certain articles[882] to ratify the approved articles only, and it would be incorrect to speak in this case of a partial ratification.
Again, it is quite legitimate—and one ought not in that case to speak of conditional ratification—for a contracting party who wants to secure the interpretation of certain terms and clauses of a treaty to grant ratification with the understanding only that such terms and clauses should be interpreted in such and such a way. Thus when, in 1911, opposition arose in Great Britain to the ratification of the Declaration of London on account of the fact that the meaning of certain terms was ambiguous and that the wording of certain clauses did not agree with the interpretation given to them by the Report of the Drafting Committee, the British Government declared that they would only ratify with the understanding that the interpretation contained in the Report should be considered as binding and that the ambiguous terms concerned should have a determinate meaning. In such cases ratification does not introduce an amendment or an alteration, but only fixes the meaning of otherwise doubtful terms and clauses of the treaty.
Effect of Ratification.
§ 518. The effect of ratification is the binding force of the treaty. But the question arises whether the effect of ratification is retroactive, so that a treaty appears to be binding from the date when it is duly signed by the representatives. No unanimity exists among publicists as regards this question. As in all important cases treaties themselves stipulate the date from which they are to take effect, the question is chiefly of theoretical interest. The fact that ratification imparts the binding force to a treaty seems to indicate that ratification has regularly no retroactive effect. Different, however, is of course the case in which the contrary is expressly stipulated in the very treaty, and, again, the case when a treaty contains such stipulations as shall at once be executed, without waiting for the necessary ratification. Be this as it may, ratification makes a treaty binding only if the original consent was not given in error or under a delusion.[883] If, however, the ratifying State discovers such error or delusion and ratifies the treaty nevertheless, such ratification makes the treaty binding. And the same is valid as regards a ratification given to a treaty although the ratifying State knows that its representatives have exceeded their powers by concluding the treaty.