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Ratification is the approval by the principal of an act of its agent where the agent shows authority to legally bind the principal. The term applies to private contract law, international treaties, and constitutional amendments in federations such as the United States and Canada.

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Private law

In contract law, the need for ratification can arise in two ways: where the agent attempts to bind the principal despite lacking the authority to do so, and where the principal authorizes the agent to make an agreement, but reserves the right to approve it. An example of the first situation is where an employee not normally responsible for procuring supplies contracts to do so on the employer's behalf. The employor's choice on discovering the contract is to ratify it or to repudiate it.

The other situation is common in trade union collective bargaining agreements. The union authorizes one or more people to negotiate and sign an agreement with management, but the agreement does not become legally until the union members ratify the agreement. If they do not approve it, the agreement is of no effect, and negotiations resume.

Ratification of an international treaty

The ratification of international treaties is accomplished by filing instruments of ratification as provided for in the treaty. In most democracies, the legislature authorizes the government to ratify treaties through standard legislative procedures (i.e., passing a bill).


In the UK, treaty ratification is a Royal Prerogative, exercised by Her Majesty's Government; however, by convention called the Ponsonby Rule, treaties are usually placed before parliament for 21 days before ratification.


In the US, treaty ratification must be advised and consented to by a two-thirds vote in the Senate. While the United States House of Representatives does not vote on it at all, the requirement for Senate advice and consent to ratification makes it considerably more difficult in the US than in other democracies to rally enough political support for international treaties. In the US, the President usually submits a treaty to the Senate Foreign Relations Committee (SFRC) along with an accompanying resolution of ratification or accession. If the treaty and resolution receive favorable committee consideration (a committee vote in favor of ratification or accession) the treaty is then forwarded to the floor of the full U.S. Senate for such a vote. The treaty or legislation does not apply until it has been ratified. A multilateral agreement may be provide that it will take effect upon its ratification by less than all of the signatories.[1] Even though such a treaty takes effect, it does not apply to signatories that have not ratified it. Accession has the same legal effect as ratification. Accession is a synonym for ratification for treaties already negotiated and signed by other states.[2]


During the past 40 years, there have been an increasing number of multilateral treaty instruments, especially those engendering the domestic application of international environmental regulatory law shaped largely by principles borrowed from Roman civil law-based foreign jurisdictions, especially those located within the European Union. Although previous US governments were involved in the negotiation of such treaties, the decision of whether to ratify/accede to such treaties now falls upon the current US administration(s). These regulatory treaties are quite different from the consul, human rights or arms control conventions the US has already ratified. Multilateral environmental regulatory treaties are usually much broader in scope than these other instruments. They may also contain robust enforcement mechanisms or trade provisions which do not permit signatory nations the flexibility to avoid their treaty obligations for legitimate economic or constitutional reasons. And, they may require the enactment of domestic legislation and/or administrative regulations to ensure that the US can fully implement its treaty obligations. In a number of cases, multilateral environmental regulatory treaties and the foreign legal principles embedded within them present the real potential to impair US sovereignty, the sanctity of the US domestic legislative and administrative regulatory processes, and the US constitutional principles of balance of power, federalism and exclusive private property rights enshrined within the US Constitution and its Bill of Rights.[3]. For this reason, some scholars have argued that the US congressional treaty ratification/accession process should entail greater checks and balances than those currently employed. One approach would be to require all US Senate committees (other than the Senate Foreign Relations Committee) and all House Committees possessing oversight jurisdiction over the many issues and subject matters covered by a given multilateral treaty instrument, to first convene open and transparent public hearings to substantively review the regulatory dimensions of a such an instrument, BEFORE the treaty is forwarded by the Senate Foreign Relations Committee to the full Senate for a ratification/accession vote. Clearly, such a process had not taken place during 2007, when the US Senate Foreign Relations Committee, chaired by former US Senator, and now, current Vice President Joseph Biden, failed to review the vast environmental regulatory component of the complex United Nations Convention on the Law of the Sea.[4]. The more committees of Congress involved in the examination of a complex multilateral environmental regulatory treaty, such as the UN Law of the Sea Convention, the more likely the American public will discover the extent, nature and impact (especially economic) of US legislative and/or regulatory adjustments deemed necessary prior to or following US ratification of/accession to such instruments. One challenge is to discern whether or not a given congress and administration have in mind to treat environmental legislative and/or regulatory initiatives as ostensibly independent of a given multilateral environmental regulatory treaty.[5]. Another challenge is to discern the extent of the direct or indirect relationship between an administration's decision to pursue ratification/accession of one multilateral environmental regulatory treaty or protocol (e.g., the UN Convention on the Law of the Sea) and its decision to pursue ratification of/accession to any other multilateral environmental regulatory treaty or protocol (e.g., Annex VI on Liability from Environmental Emergencies of the Protocol on Environmental Protection to the Antarctic Treaty (the ‘Madrid Protocol’), which affirms Article IV of the Antarctic Treaty).[6].

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Ratification of the European Constitution

The process for ratifying the Treaty establishing a Constitution for Europe—a proposed constitutional document for the European Union (EU)—varied from country to country; seven countries were intending to hold binding referendums to determine the outcome, sixteen would decide by parliamentary vote and two countries opted for parliamentary approval advised by an advisory referendum. To take full effect, the constitution should have been ratified by all the member states of the EU as well as the European Parliament. The constitution was ratified by the European Parliament and sixteen member states (based on the parliaments of fourteen member states, and referendums in two others, Spain and Luxembourg). However, referendums first in France (on 29 May 2005) and then in the Netherlands (on 1 June 2005) rejected the constitution. After some minor modifications, such as dropping the label 'constitution' and references to the flag, the text was adopted as the Treaty of Lisbon.

Ratification of the Treaty of Lisbon took place on November 3, 2009 with the signature of the Czech republic. This happened after the constitutional court of the Czech republic found the Lisbon treaty to be compatible with the Czech constitution.

Ratification of a constitution

Federations usually require the support of both the federal government and some given percentage of the constituent governments for amendments to the federal constitution to take effect.

Ratification of the United States Constitution

Article Seven of the constitution of the United States describes the process by which the entire document was to become effective. It required that conventions of nine of the thirteen original States ratify the constitution. Once word was received that the ninth state had ratified the constitution—New Hampshire, June 21, 1788 - a timetable was set for the start of operations under the Constitution, and on March 4, 1789, the government under the Constitution began operations.

Ireland

The ratification of the current Constitution of Ireland was achieved by plebiscite in 1937.

References

  1. ^ An example for such a treaty can be seen in the Convention on Cluster Munition. It will enter into force as soon as it has ben ratified by at least 30 states. See Article 17 of the Convention on Cluster Munitions.
  2. ^ United Nations Treaty Collection, Treaty Reference Guide(1999)
  3. ^ The Extra-WTO Precautionary Principle: One European ‗Fashion‘ Export the United States Can Do Without, Lawrence A. Kogan, 17 TEMP. POL. & CIV. RTS. L. REV.(Spring 2008)
  4. ^ What Goes Around, Comes Around: How UNCLOS Ratification Will Herald Europe’s Precautionary Principle as U.S. Law], Working Paper and Abstract available online, Social Science Research Network (SSRN),Lawrence A. Kogan, CEO of the Institute for Trade, Standards and Sustainable Development (May 5, 2009); [1] 7 SANTA CLARA INT’L L., Lawrence A. Kogan (October 7, 2009)
  5. ^ “Ecosystem-Based Management”: A Stealth Vehicle To Inject Euro-Style Precaution Into U.S. Regulation], Lawrence A. Kogan, Washington Legal Foundation (July 10,2009).
  6. ^ Polar Sea Ice Melts Away in Time for Antarctic Easter Surprise, Lawrence A. Kogan, Institute for Trade, Standards and Sustainable Development (April 2009).

See also


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