was the case with the Treaty of Paris of 1856, it is agreed that they shall come into force from the moment of ratification.1 To this rule Treaties of Cession are an exception; for it is undoubted law that they commence to operate from the time of the actual transfer of the ceded territory.2

The question whether a state is bound to ratify a treaty signed by its lawful representatives is sometimes argued at great length by text-writers. But a reference to practice robs it of its difficulties. When the ratifying power and the treaty-making power are placed by the constitution of a state in different hands, there cannot be the slightest obligation, moral or legal, for it to ratify. Other states know that the approval of two authorities has to be gained for a diplomatic instrument before it can be considered as agreed to, and they take their measures accordingly. The Senate of the United States has frequently refused to ratify treaties made by the executive power. In 1897, for instance, it refused its assent to a treaty with Great Britain for the submission to arbitration of future disputes between the two countries; and in 1888 it threw out a Fishery Treaty which had been negotiated with Great Britain. But when the treaty-making power and the ratifying power are vested in the same hands, it is held that some reason should be forthcoming to justify a refusal to ratify. If the negotiators have exceeded their powers, if any deceit as to matters of fact has been practised upon them, or if circumstances have entirely changed since the treaty was signed, there can be no doubt that a state is quite within its rights in declining to give the last formal sanction which calls the stipulations of its agents into operation. But modern practice seems to go further, and gives support to the theory that the time between signature and ratification is granted to the parties for the purpose of thinking the matter over, and that if a state changes its mind in the interval from any reason 1 Holland, European Concert in the Eastern Question, p. 244. 2 Twiss, Law of Nations, I., § 251.

that is at all distinguishable from mere caprice, it may refuse to complete the bargain by ratification. Thus the King of Holland refused in 1841 to ratify a commercial treaty he had concluded as Grand Duke of Luxemburg, on the ground that since he had signed it he had become convinced that it would injure the trade of its subjects,1 and in 1884 Great Britain dropped an agreement she had concluded in 1883 with Portugal concerning the mouth of the Congo, the reasons being that its provisions were very far from satisfying the traders and others immediately concerned, and that it was proposed to settle the question along with many other similar questions at a great International Conference.2

§ 153.

Next among the matters of international concern connected with formal agreements between states we may mention

The interpretation

The rules of interpretation to be applied to treaties. A vast amount of misplaced ingenuity has been expended on this subject. Vattel devotes a whole chapter to it, and obtains as the result such rules as "It is not of treaties. permitted to interpret what has no need of interpretation" and "We ought to take figurative expressions in a figurative sense. But since states have no common superior to adjust their differences and declare with authority the real meaning and force of their international documents, it is clear that no rules of interpretation can be laid down which are binding in the sense that the rules followed by a court of law in construing a will or a lease are binding on the parties concerned. "There is no place for the refinements of the courts in the rough jurisprudence of nations." 4

1 Twiss, Law of Nations, § 251.

2 Speech of Mr. Gladstone in House of Commons, March 12, 1885; see Hansard, 3d Series, Vol. CCXCV., 975.

3 Droit des Gens, II., xvii.

4 Hall, International Law, p. 340, note.

We can hardly venture to go beyond the statements that ordinary words must be taken in an ordinary sense and technical words in a technical sense, and that doubtful sentences and expressions should be interpreted by the context, so as to make the treaty homogeneous and not self-contradictory. But when states get into controversy about the interpretation of a treaty, they often make a new agreement, clearing up the disputed points in the way that seems most convenient at the time, which is not always the way pointed out by strict rules of interpretation.

§ 154.

The last point we have to consider in this connection is

The extent to which treaties are binding.

The ancient and mediæval fashion of giving pledges and hostages for the fulfilment of treaties has passed away, and states now rely upon their own power, and upon The obligation considerations of self-interest and feelings of of treaties. duty, to secure the observance of engagements entered into with them. In the eye of International Law treaties are made to be kept. Their obligation is perpetual, unless a time is limited in their stipulations or they provide for the performance of acts which are done once for all, such as the payment of an indemnity or the cession of territory. That they were extorted by force is no good plea for declining to be bound by them. Most treaties of peace are made by the vanquished state under duress; but there would be an end of all stability in international affairs if it were free to repudiate its engagements on that account whenever it thought fit. The only kind of duress which justifies a breach of treaty is the coercion of a sovereign or plenipotentiary to such an extent as to induce him to enter into arrangements which he would never have made but for fear on account of his personal safety. Such was the renunciation of the Spanish crown extorted by Napoleon at Bayonne in 1807 from

Charles IV. and his son Ferdinand.1 The people of Spain broke no faith when they refused to be bound by it and rose in insurrection against Joseph Bonaparte, who had been placed upon the throne.

But though the obligations of treaties, with the exceptions just mentioned, are perpetual as far as the utterances of International Law are concerned, it is clear that they cannot remain unchanged forever. No one now proposes to go back to the Treaties of Münster or of Utrecht, and few would consider it desirable to return to the stipulations enacted at Vienna after the downfall of the first Napoleon. As circumstances alter the engagements made to suit them go out of date. When, and under what conditions, it is justifiable to disregard a treaty, is a question of morality rather than of law. Each case must be judged on its own merits. It is impossible to lay down a hard and fast rule, such as was embodied, at the Conference held at London in 1871 to settle the Black Sea Question, in the words, "It is an essential principle of the Law of Nations that no power can liberate itself from the engagements of a treaty, nor modify the stipulations thereof, unless with the consent of the contracting powers by means of an amicable arrangement."2 This doctrine sounds well; but a little consideration will show that it is as untenable as the lax view which would allow any party to a treaty to violate it on the slightest pretext. If it were invariably followed, a single obstructive power would have the right to prevent beneficial changes which all the other states concerned were willing to adopt. It would have stopped the unification of Italy in 1860 on account of the protests of Austria, and the consolidation of Germany in 1866 and 1871 because of the opposition of some of her minor states. International Law certainly does not give a right of veto on.political progress to any reactionary member of the family of nations who can dis1 Fyffe, Modern Europe, I., 367–370.

2 British State Papers, Protocols of London Conference, 1871, p. 7.

cover in its archives some obsolete treaty, on the fulfilment of whose stipulations it insists against the wishes of all the other signatory powers. In truth these questions transcend law. They are outside its sphere; and its rules do not apply to them. Moreover it must be remembered that sometimes provisions are inserted in a treaty more for show and to soothe wounded susceptibilities, than with any serious intention of having them carried into effect. Such was the stipulation in the Treaty of Berlin in 1878 that Turkey should garrison the Balkan passes with her troops, who should have for that purpose only a right to pass through Roumelia.1 It was well known that the people of that province would not allow the Ottoman soldiers to pass and repass peaceably, and the Porte was not expected to exercise, and never did exercise, the right given to it on paper. A stipulation of the great International Treaty of Berlin was thus ignored from the beginning, and the consent of the contracting parties was never even asked; yet no accusations of bad faith have been bandied about, and the strictest moralists would hardly venture to say that the provision should have been acted upon at the risk of kindling another war. Each case has circumstances that are peculiar to it, and we must judge it on its own merits, bearing in mind on the one hand that good faith is a duty incumbent on states as well as individuals, and on the other that no age can be so wise and good as to make its treaties the rules for all succeeding time.

1

1 Holland, European Concert in the Eastern Question, p. 289.

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