Abstract
The term “ratification” is used in different senses. The normal international law use of the term is that which describes the formal act by which the contracting party concerned gives its final acceptance to the treaty and intimates this acceptance to the other party. The act is carried out by the executive organ and is the ratification proper or ratification in the international sense of the term. Ratification establishes the formal acceptance of the treaty. It means the ratification of the act of an agent in signing it. While the purpose of signature is to authenticate a project and to identify the proposed parties to the treaty, the purpose of ratification is to indicate the final willingness of the State to be bound by the treaty. The practice of States has required an exchange of ratifications. This is the essential stage in the treaty-making process, and it is not merely evidentiary.1
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References
See to this more fully Georg Dahm, Völkerrecht, 3 Vols. (Vol. 1, Stuttgart, 1958, Vol. 2 and 3, Stuttgart, 1961), Vol. 3, pp. 75ff.; Jones, op. cit.,supra, p. 66ff.; F. Dehousse, La ratification des traités (Paris, 1935), p. 67; G. G. Fitzmaurice, “Do Treaties Need Ratifi cation,” 15 B.Y.I.L. 113 (1934); Diether Haas, “Abschluss und Ratifikation internationaler Verträge,” 78 AöR 381 (1953); H. O. Meissner, Vollmacht und Ratifikation bei völkerrechtlichen Verträgen nach deutschem Recht (Göttingen, 1934), PP. 75-6; F. 0. Wilcox, The Ratification of International Conventions (London, 1935), pp. 105–10 and the Appendices; L. Wohlmann, Die Kompetenz zum Abschlusse von Staatsverträgen nach Völkerrecht (Zürich, 1931); McNair, op. cit. supra, pp. 129–47; Blix, op. cit. supra, pp. 70–300.
The term ratification derived from private law. Its literary meaning is “confirmation.” While in private law ratification is used only in cases where the agent has concluded a contract which would be ineffective legally without ratification, in international law ratification is customary and not necessary in all cases. In Australian practice ratification is discretionary.
See case Concerning Certain German Interests in Polish Upper Silesia (Merits) P.C.I.J Ser. A, No. 7 (1926); Case Concerning the Factory at Chorzów (Merits) P.C.I. J. Ser. A, No. 17 (1928), 33-34; Free Zones Case, P.C.I.J. Ser, A, No. 24 (1930), is and Ser. A/B, No. 46 (1936), 167; Advisory opinion on the Treatment of Polish Nationals in Danzig,P.C.I.J., Ser. B, No. 15 (1928) 17; Exchange of Greek and Turkish Populations, P.C.I. J., Ser. B. No. 10 (1925) 20.
See with respect to this, the British practice of submitting treaties to Parliament, E. Lauterpacht, “The Contemporary Practice of the United Kingdom in the field of International Law-Survey and Comment, V” 7 I.C.L.Q. 92 (1958) at 121; Note, “Submission of Treaties to Parliament,” 5 B.Y.I.L. 19 (1924), Parliamentary Debates (House of Commons), Vol. 171, p. zoo7; Note “Submission of Treaties to Parliament Before Ratification,” 6 B.Y.I.L. 188 (1925); E. Lauterpacht, “The Contemporary Practice of the United Kingdom in the Field of International Law-Survey and Comment, IV,” 6 LC.L.Q. 506 (1857) at 528–29 (for an explanation of the practice); the practice does not appear to apply to technical conventions of a minor character, nor to Declarations of acceptance of jurisdiction of the International Court under Article 36(2) of the Statute, see also McNair, op. cit., pp. 99 and 1o0.
Stewart, op. cit., p. 252, pointed out that in the Commonwealth of Australia the first step in the procedure of ratifying a treaty is the adoption by the Commonwealth Parliament of a resolution approving the treaty. This seemed to have been the procedure in 1938 at the time Stewart was writing. The procedure has changed since and is described above.
Friedrich Wegmann, Die Ratifikation von Staatsverträgen (Berlin, 1892), pp. 99—Ioo, held that exchange of ratification concluded the treaty but that any special requirements laid down either by the treaty itself or by the internal laws of the parties were condiciones juris suspensivae which must be fulfilled before the treaty acquired full legal force, since ratification which is not communicated does not operate in the international field.
Compare Conventions for the Protection of War Victims, Geneva, August 12, 1949, T.S. No. si (1958); Articles 58 of the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Article 57 of the Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea; Article 238 of the Convention Relative to the Treatment of Prisoners of War; Article 253 of the Convention Relative to the Protection of Civilian Persons in the Time of War.
J, B. Moore, A Digest of International Law (Vol. 1–8 Washington, 2906), Vol. 5, p. 244.
Australian treaties do not often provide the date from which it will begin to operate when it enters into force. The date of the beginning of operation is of vital importance in the application of a treaty.
Compare furthermore the following treaties to which Australia is a party and clauses therein: International Tele-communication Convention, Article 17, T.S. No. 3 (1949); Constitution of the World Health Organisation, Chapter XIX, section 78, T.S. No. 7 (1948); Constitution of the International Refugee Organisation, Article r8, T.S. No. 16 (1948); General Agreement on Tariffs and Trade together with related Documents, Article XXVI and Article XXXIII. Paragraph 1 of Article XXXIII has been modified by the Protocol modifying certain provisions of the General Agreement on Tariffs and Trade: see to this T.S. (1948), P. 46; International Plant Protection Convention, Article XII, T.S. No. 5 (1953); Convention relating to the Status of Refugees, Article 43, T.S. No. 5 (1954); Convention on Road Traffic, Article 27, section 3, T.S. No. 2 (1955).
A few specimens may be cited as typical: Agreement between Australia and Japan for Air Services together with Exchange of Notes, T.S. No. 6 (1956)
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© 1966 Martinus Nijhoff, The Hague, Netherlands
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Doeker, G. (1966). Ratification and Implementation. In: The Treaty-Making Power in the Commonwealth of Australia. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-9560-7_6
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