The treaty-making prerogative of the Crown The execution of treaties involving an expenditure The execution of treaties involving a change in the laws General legislation for the execution of treaties Private rights and personal liberties Proposed limitations on the treaty-making prerogative I. DATE OF Taking Effect. Individual rights National character . INTRODUCTION NAPOLEON III of France and Francis Joseph of Austria, each exercising of his own right sovereign powers, met and signed, July 11, 1859, the preliminary peace of Villafranca. A treaty thus concluded is perfected as an international compact immediately upon the signing. The Holy Alliance, which was, however, of a peculiarly personal nature, was likewise signed in person September 26, 1815, by the sovereigns of Russia, Prussia and Austria. The secret treaty of Tilsit of July 7, 1807, although not signed by the sovereigns themselves, embodied the results of the personal conference on the Niemen between the Czar Alexander and Napoleon I. For states, other than those in which the sovereign power is legally centered in a single person, to meet in their sovereign capacity, is quite inconceivable. The organization and powers of the agency through which such a state contracts are defined by its fundamental law, or constitution. Although in the ultra-democratic movement of 1793 in France, propositions were made to require the submission of treaties to the people, as sovereign, for approval, such a requirement is hardly to be contemplated. The delegation of authority to enter into treaties must of practical necessity be final, and an obligation constitutionally contracted is binding on the entire state. The determination of the agency in the different states intrusted with this power is the first step in a work on treaty-making. It is a principle of public law that a sovereign state is restrained only by self-limitations or by such as result from a recognition of like powers in others. Accordingly the full power to enter into treaties is an attribute of every such state, as likewise a limitation on its exercise is a first mark of dependence. It does not follow that the power resides unrestricted in the regularly constituted treaty-making organ. A subject with which it assumes to deal may be intrusted by the state to another organ of government, and the consent of that organ may be necessary to the exercise of the power. In a federal system of government the subject may possibly be reserved to the several States or even to the people, but the power nevertheless exists, and the presumption always is, if there is no express limitation to the contrary, that the state intended that the power vested in the regularly constituted organ should extend to all the usual subjects of international regulation, and should be sufficient to meet any exigency arising from contact with other states. The powers of the special agents (for it would seldom be practicable for the treaty-making organs of two states to meet in conference) appointed to conduct and conclude negotiations, are defined by special commissions and instructions. By the earlier writers on international law, living at a time when the theory of personal sovereignty generally obtained, and the negotiator was the immediate agent of the sovereign, the rule of the Roman law, that the principal is bound by the agent acting within his powers, was applied to treaty negotiations.' The advantages of intrusting full and general 'See Grotius, Bk. ii, ch. xi, sec. 12; Puffendorf, Bk. iii, ch. ix, sec. 2; Vattel, Bk. ii, ch. xii, sec. 156. powers to the negotiators, and the importance of the trust have led recent writers quite generally to admit that, even if no reservation be made in the treaty or full powers, ratification, expressly or tacitly given, is essential to the validity of the treaty, and may for strong and substantial reasons be refused.' The qualification that the ratification may be refused, when the negotiator has acted within his powers, only for strong and substantial reasons, has application only in case his powers and instructions are given by the full treaty-making power of the state. For instance, in the United States a treaty is regularly negotiated on the authority of the President, while its ratification cannot be given without the authorization of the Senate. The plenipotentiary, commissioned and instructed by the President alone, acts not on the authority of the treaty-making power, but only on that of a separate branch of it. The act of the plenipotentiary is not the act of the state, for the President cannot thus delegate a power not intrusted to him. The negotiator can bind at most only his principal. The maxim, "qui cum alio contrahit vel est, vel debet esse non ignarus conditionis ejus," applies in the making of treaties. To know the powers of him with whom negotiations are conducted requires a knowledge not only of his special mandate and powers, the exhibition of which may always be demanded before the opening of the negotiations, but also of the fundamental law, or constitution, of the state which he professes to represent, as also of any limitations that may result from an incomplete sovereignty, as, for instance, in case of a semiindependent or permanently neutralized state. To the 'See to the contrary, Phillimore (2d ed.), vol. ii, p. 75; Klüber (2d ed.), p. 202. See also, Heffter, sec. 87. |