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tentatively pledged by the signatures of the plenipotentiaries. Opportunities are thus afforded of investigating whether the power of the Government is being properly exercised, not only as to material advantage, but also as to the legality of the proceedings and the extent of the power exercised.
After the treaty has been concluded it is referred to the President; it then rests with him to determine whether he shall submit it to the Senate for ratification. This is not merely a matter of form; there are numerous instances in the history of the United States in which treaties have been concluded by commissioners appointed by the President but which he, or his successor, has rejected and which have never reached the Senate, the mere action of the President in refusing to subunit them, thus rendering them wholly inoperative.
In a note to this section a brief description will be given
this treaty and events connected 1 President Taylor refused to therewith, letter of Secretary Evtransmit a treaty negotiated with arts to President Hayes, March 8, Nicaragua in 1819. (Hise-Silva 1880, published with Sen. Ex. Doc. Treaty.) See for particulars of | 112, 46th Cong., 2d Session.
2 FORMS OF AGREEMENTS WITH FOREIGN POWERS. Five methods will be referred to in this note in the following order: I. Treaties and Conventions; II. Declarations of Accession to Existing Treaties; III. Modi Vivendi ; IV. Protocols and Diplomatic Arrangements; V. Reciprocal Legislation and Executive Proclamation.
I. TREATIES AND CONVENTIONS. The method usually, in fact almost universally, adopted for establishing relations between two or more countries is by the execution and formal ratification, according to the constitutional provisions or law of the contracting parties, of a written instrument containing: First, the names of the contracting powers, or sovereigns, and the individuals with their full titles, who have been authorized to negotiate the treaty, with a declaration that the representatives of each power have examined and approved the full powers of the representatives of the other power and found them satisfactory; Second, one or more articles declaratory of the various matters agreed upon by the powers and which are either expressed in the common language, if both countries have the same, or in the several languages of the contracting powers, in either parallel columns or duplicates, or in either English or French, as may have been agreed upon, especially in the case of conventions acceded to by numerous powers; when a treaty is in one or more languages each must be treated as the final treaty; (See Davis' Rule VI on construction of treaties in note 6 to 8 391, p. 147, ante); Third, provisions for ratification of
of the various methods by which contractual relations between the United States and Foreign Powers are established
the treaty, the exchange of ratification, duration and method of termination or renewal; Fourth, signatures of the commissioners.
The foregoing are simply stated here as the customary forms usually complied with; the form of a treaty or convention, if properly ratified and acted upon, is not essential to its validity. The procedure generally followed by the United States in the negotiation and ratification of a treaty is the subject of other notes (see § 464, 465, pp. 373, et seq., post).
Agreements or contracts between Governments are called TREATIES and CONVENTIONs indiscriminately. While no fixed rule can be stated as to the distinction between these terms, it can be said generally that TREATY applies to an international agreement between two nations by which their relations of peace, amity and commerce are established, while the word CONVENTION applies to agreements between a number of powers, or between two powers as to some particular matter, such as in the former case, the Geneva Conventions (Red Cross) of 1864 and 1882, and in the latter case the numerous “ claims conventions" between this and other countries settling claims or appointing commissions to adjudicate them. Postal agreements are almost universally called Postal CONVENTIONS. The titles of the various treaties, conventions, etc., in the TREATIES APPENDIX at the end of this volume show how these terms are generally used. Treaties, conventions (postal and all other kinds), and in fact every kind of an agreement with any foreign power or powers which can come within the definition of the word TREATY as the same is used in the Constitution of the United States, must be ratified by the Senate, by a two-thirds vote, before they can become the law of the land as provided by Article VI, and in this respect it makes nu difference how it may be entitled. This applies to declarations of accession, modi vivendi, and, to some extent, to protocols and agreements mentioned in the succeeding sections.
For a definition and description of “treaties” and other international arrangements, and how they are enacted into, see the following authorities: Glenn's International Law, $$ 100-10:3; Woolsey's Iuternational Law, $ 150; Wharton's International Law Digest, $$ 130, 131, and 131a; Hall's International Law, 4th edition, pp. 343, et seq:; Wheaton's International Law, 8th edition, pp. 328, et seq.
II. DECLARATIONS OF ACCESSION TO EXISTING TREATIES. Treaties and conventions are sometimes made by two or more powers, with provisions permitting other governments to unite therein with the same effect as though they were among the original signatory powers. This is called accession to a treaty and is evidenced by a declaration of accession, executed in the manner provided by, and lodged with, the power named in the treaty.
The Geneva Convention (Red Cross) of 1864 was acceded to by the United States by a declaration executed March 1, 1882, (U. S. Tr. and
and evidenced. No attempt will be made to enumerate every instance in which the various methods have been
Con. 1889, p. 1150; U. S. Treaties in Force, 1899, p. 665) which was ratified by the Senate March 16, 1882, and accepted by the Swiss Confederation June 9, 1882.
There have been occasions on which foreign powers have acceded to treaties previously made by the United States with a single power and containing provisions for accessiou of other powers. Such was the case when Württenburg acceded in 1853 by a declaration (U. S. Tr. and Con., 1889, p. 1146) to the treaty of 1852 between this country and Prussia, which provided for the accession thereto of other States of the then existing Germanic Confederation. In 1847 Oldenburg acceded to the treaty of commerce and navigation with Hanover, by a mere declaration of accession, which was never ratified or proclaimed (9 U. S. Stat. at L., Treaties, p. 66).
A notable instance, which can only be briefly mentioned, in which the accession of the United States to an existing treaty was considered, arose under the Declaration of Paris of 1854, as to Privateering, Blockades and Neutral Commerce. Only four powers originally entered into this Declaration, but it contained, provisions for other Puwers acceding thereto and nearly all the maritime powers have done so.
The correspondence conducted in regard thereto, during their l'espective terms of office, by Secretaries of State Marcy and Soward, is interesting and instructive. The United States has never acceded to the Declaration; but on several occasions it has offered to do so under certain specified conditions generally involving the exemption of private property at sea from capture during war. (See document prepared by the author on this subject for use of the American Commissioners to the Peace Conference at The Hague, 1899, referred to in note 5 to $ 160, pp. 278, 280, vol. I.)
In the author's opinion the ratification of the Senate is as essential to the accession of the United States to an existing treaty or convention as it would be if the United States were one of the original parties thereto; and to the accession of a foreign power to an existing treaty or convention between the United States and another foreign power, unless the original treaty provided for such accession.
III. MODI VIVENDI.
A modus vivendi is an agreement between two or more nations as to their conduct in regard to matters in dispute pending the adjustment thereof. That is to say it is a temporary treaty or convention limited to a period which as a general rule is very brief.
Instances in which this form of treaty has been used are:
In regard to the North Atlantic Fisheries in 1885, when the fishery clauses in the treaty of Washington of 1871 were terminated (see note 1 to § 385, p. 132, ante), a modus vivendi was arranged by notes exchanged during April, 1885, between Secretary Bayard and Sir L. S. SackvilleWest, then minister from Great Britain, by which certain arrangements were made for the balance of the fishing season from July 1, 1886, when adopted. In each case a few examples will be given. The various treaty volumes already referred to, and the appenthe treaty terminated, to December 31, 1886. (See U. S. For. Rel. 1885, pp. 460, et seq.)
A second modus vivendi was entered into in regard to the North Atlantic Fisheries in 1888. This was arranged by the Commissioners who framed the Bayard-Chamberlain treaty of 1888 which was rejected by the Senate. (See Sen. Ex. Doc. 113, 50th Cong., 1st Sess,, March 5, 1888, pp. 125 and 141.) It granted certain privileges to American fishermen as to purchasing bait and other supplies on payment of a fixed license. It expired by its own limitation February 15, 1890, and has never been renewed, although in 1898 the Dominion government was still issuing licenses under it.
Neither of these modi appear to have been ratified by the Senate. They were simply protocols of the class which will be referred to in the next subdivision of this note.
A modus in regard to the protection of fur seals in Bering Sea was entered into between this country and Great Britain in June, 1891. This modus was never ratified by the Senate but was proclaimed by the President. (27 U. S. Stat. at L., p. 980.) The protection of the seals during the pendency of the arbitration in Paris on the subject was covered by a formally ratified convention. (27 U. S. Stat. at L. p. 952).
A modus was also entered into between the United States and Russia in regard to fur seals in 1894 (28 U. S. Stat. at L. p. 1202; U. S. Treaties in Force, 1899, p. 545) which was ratified by the Senate.
IV. PROTOCOLS AND DIPLOMATIC AGREEMENTS. There have, however, been occasions when international matters have been adjusted without the usual formalities attendant upon the negotiation of treaties, and without ratification of the Senate. One method is by protocol between the foreign offices of the two countries.
The definition of protocol includes a record of the proceedings of commissioners, and in that sense it is not used to designate a completed agreement (for an instance in this sense, see proceedings of the commissioners negotiating the Treaty of Washington of 1871 with Great Britain, U. S. Foreign Relations, 1871, pp. 493, et seq).
When, however, the foreign offices of two countries agree in a matter and reduce it to writing it is often called a protocol. It is not, so far as the United States is concerned, a treaty, and does not become the supreme law of the land. How far it is binding upon the national conscience is therefore a political and not a legal question. The extent to which foreign relations can be settled in this manner is one which has not been, and cannot be, generally stated.
Such protocols and agreement when first made are binding in a moral sense upon the Executive department of the administration making them; they are not laws nor are they contracts which the legislatures of either party are bound to render effectual by legislation, until after they have assumed legal form by ratification. It is doubtful if they are binding even morally upon any administration other than that which
dices and the digests thereto must be consulted in order to find all the cases of each class, and the list of treaties in the
entered into them. See Angerica vs. Bayard, U. S. Sup. Ct. 1887, 127 U. S. 251, BLATCHFORD, J., and extract therefrom in note 8 to $ 444, p. 305, unte, in which the Supreme Court held that a letter of Secretary of State Evarts allowing interest on money received from Mexico, was not binding on his successors.
Some of the instances in which instruments in writing have been exchanged by the Secretary of State with the representatives of foreign countries, and acted upon thereafter as agreements between the United States and the said countries respectively, are:
The Armistice between the United States and Great Britain pending the negotiation of the Preliminary Articles and Definite Treaty of Peace terminating the Revolutionary war. (8 U. S. Stat. at L., p. 58.)
The Protocol of 1893 providing for the appointment of a Commission to negotiate the Treaty of Peace terminating the Spanish-American war of 1898. (Printed in full in INSULAR CASES APPENDIX at end of volume I.)
The two Modi Vivendi as to North Atlantic Fisheries, referred to in the preceding subdivision of this note.
The agreement of April, 1817, between the United States and Great Britain as to the naval force to be maintained by those governments upon the American lakes. (8 U. S. Stat. at L., p. 231.) The two governments observed the terms of this agreement, in that form, for about a year when it was approved by the Senate, and proclaimed by the President on April 28, 1818. (11 U. S. Stat. at L., p. 766.) For a history of this agreement, see Johns Hopkins University Studies in Historical and Political Science, Series XVI, No. 4, pp. 59, et seq., Baltimore, 1898.
There have also been occasions on which claims of citizens of the United States and of foreign governments have been referred to arbitration by protocol, although a formal convention ratified by the Senate is the usual method. (As to The Hague treaties and the necessity for a convention or the sufficiency of a protocol for referring claims to the Tribunal, see note 1 under $ 465, p. 376, post.)
The claims of American citizens against Spain for wrongs and injuries committed by the authorities of Spain and Cuba were referred to a commission which sat for several years in Washington, by an agreement evidenced only by an exchange of notes between Major General Daniel E. Sickles, our then Minister to Spain, and the Spanish Secretary of State. This agreement was never ratified by the Senate. (See U.S. Tr. and Con. 1889, p. 1025.) Many awards were made thereunder and paid by Spain. Had the awards been made against the United States some question might have been raised as to their validity on account of the nonratification by the Senate. Spain does not seem to have raised any question in regard thereto.
Some other unratified protocols or agreements, by which the claims of citizens of the United States were submitted to arbitration are: The protocol of 1870 with Brazil (Moore's History of International Arbitration, p. 4687); the protocols of 1884 (23 U. S. Stat. at L., p. 785), of