New-York tribune., 1905-07-23
". WITTE"S POWERS.
Fears That Russia EW Not BE
Bound by His agreements.

case in international law and under the cir
oumstances the description Of the Japanese and
Russian Peace Commissioners as ''plenipoten-
tiaries" and being invested with full pow
crs" is a tri1e misleading. 1t is not that any
treaty which they may conclude is subject to
legislative ratification, here in the United
States. where no International contract becomes
operative until it has been passed by The Senate.
IN Japan, in Russia the prerogative of rati-
fyng treaties is vested in the monarch, by whom
the plenipotentiaries are invested with their
full powers" These latter only be consid-
cred in the light of what known in legal par
lance as a ''procuration liberia; that is.
with reserves" These are several in number.
In the first place, the pienipotentiary of each
sovereign. besides the letter of credence invest
ing him with the full powers to negotiate an
agreement. is almost invariably provided by his
monarch with a series of secret instructions.
The latter are not disclosed, whereas the patent
credentials investing the special Ambassador
with his authority and indicating its character
are, of course. exchanged and mutually commu-
ricated at the first meeting of the conference.
According to Vatte BynkershOek and other
standard authorities on the subject of treaties
and international law. it is rare indeed that the
entire instructions contained in the patent
full power. and it is held that if a plenipoten-
tiary. while conforming himself to the instruc-
tions contained in the patent full power dis
sovereign the latter is entitled to repudiate the
agreement concluded by his agent
Martens. too. in his works declares that "the
positive law of nations. considering the neces-
sity of giving to negotiators the most extensive
full powers. requires n special ratification, so as
not to expose the state to the irreparable in
juries which the inadvertence or bad faith of a
subordinate authority might occasion it,: so
that treaties are depended upon only when rati-
fled by the principal-that is to say by the
monarch-whom the plenipotentiary represents.
sovereign, according to VatteI and the other
authorities of international law. honorably
refuse to ratify an agreement concluded by his
-pienpotentiary on the strength of a full power
II he can show that his agent has deviated from
MS pupilc or secret instructions. He also
invoke other reasons, such 'the physical or
moral impossibilities' of fulfilling the stipula-
tions of the contract. Physical impossibiIity'
In this instance means the disability to execute
ior want OF the necessary physical means Nor
al inpssAassaity' is where the execution of the
engagement would affect injuriously the rights
OF third parties Another valid reason for the
reueAA"sa OF an agreement concluded by a
pieA'eete"aiery Is mutual error Of the parties
TO the treaty respecting matter of fact which
III kaswn in its true circumstances would have
infiuenced the negotiations and modified the
terms And then, too, another cause regarded
as sufficient for reputation is what Wheaton I'm
ms elements of International Law" describes
as a change of circumstances on which the
'allalty of the treaty is made to depend either
10y an expressed stipulation or by the nature of
'he treaty itself. AS such change OF circ1m-
stances would avoid the treaty even after rati-
hcauoh So II it takes place previous to the rati-
hcatlon, it will afford a strong and solid reason
Tor withholding that sanction" AS an illustra
uoh OF what this means. I may mention that
We're Tor instance the Russians to inflict an
overwhelming and crushing defeat upon the
japanese in Manchuria during the last stages
OF the negotiations or Immediately afterward
this would constitute a "change OF circurn
stances sufficient to warrant the C,zar from,
Withholding his sanction to the treaty since he
would no longer be in the position OF the de-
feated party, but of the victor.
A large number of instances couId ha
cted where monarchs have declined to ratify
the agreement concluded by their plenipoten
tIaries. Thus ir 1871 the King of the Meth
erlands refused to ratify a treaty made bv his
PIenipotentiaries for the incorporation of Lux
einburg into the German Customs Union on the
ground of the representations made to him nv
MS SUBJECTS OF the grand Guchy as TO the inju-
lious effect which the convention was lileIv m
have upon their commercial interests Prussia
vigorously protested. insisting that the treatv
was morally binding on the King of Holland in
his capacity of sovereign Grand Duke of Lux
emburg. But the remainder OF the powers and
all the principal authorities on international law