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express provision in the Constitution and that its exercise must not be inconsistent with the nature of our Government and the relation between the States and the United States, but those are mere dicta, they were not necessary to the decisions, and of course you all know that to this day the Supreme Court has never found a treaty to be beyond the powers of the Federal Government.

Now may I briefly refer to the supreme-law clause of the Constitution. It states:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any States to the contrary notwithstanding.

Now if you will notice, and perhaps you already have, that under this provision laws of the United States are the supreme law of the land only if made in pursuance of the Constitution while treaties are declared to be the supreme law of the land if they are made under the authority of the United States.

In other words, under this very general and almost unlimited power to enter into treaties.

Then we have the last paragraph of section 8 of article I dealing with the powers of Congress which, after stating the enumerated powers provides that Congress may make all laws necessary and proper for carrying into execution its enumerated powers.

Then mark you this: all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof. Under that provision, the Congress may enact laws to implement and carry into effect treaties made under the authority of the United States, although it would not have power under the Constitution to enact such laws in the absence of the treaty.

That is, of course, the basis of the holding of the Missouri v. Holland where the Migratory Bird Treaty and the regulations of the Secretary of Agriculture were upheld. You will recall that two earlier cases involving the validity of an act of Congress undertaking to accomplish that result were held back, but when the matter came before the Supreme Court under the treaty-making power, after referring to those cases, Mr. Justice Holmes himself said:

Whether the two cases cited were decided rightly or not, they cannot be accepted as a test of the treaty power.

He said further : Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States.

It supports the statement I made about the power of Congress under the treaty-making power. If you once enter into a treaty then you can implement it, although you could not possibly have passed such a law under the Constitution in the absence of a treaty.

Now the matter which has given the committee of which I am a member and others difficulty was referred to by the late Chief Justice Hughes in an address he made in 1929. He first spoke about the treaty-making power not being subject to any express limitation and perhaps there was no implied or explicit limitation attached to it insofar as it related to the external concerns of the Nation.

Then he made what to me is a prophetic statement:

Now there is, however, a new line of activity which has not been very noticeable in this country, but which may be in the future, and this may give rise to new questions as to the extent of the treaty-making power.

Then he said this:

I have been careful in what I have said to refer to the external concerns of the Nation. I should not care to voice any opinion as to an implied limitation on the treaty-making power.

In other words, to deal with matters which did not pertain to our external relations but to control matters which normally and appropriately were within the local jurisdictions of the States. Then I again say there might be ground for implying a limitation upon the treatymaking power, that it is intended for the purpose of having treaties made relating to foreign affairs and not to make laws for the people of the United States in their internal concerns through the exercise of the asserted treaty-making power.

But he carefully says that he would not say there was such an inplied limitation. My position is that if there is not, there ought to be, and it ought to be made certain.

Senator FERGUSON. And that would be the purpose of the amendment?

Judge Phillips. That is the purpose of the proposed amendment.

Significantly, the State Department in September 1950 made the statement, official statement, as I understand, and released it in which they said: “There is no longer any real distinction between 'domestic' and foreign affairs."

Senator FERGUSON. What was that case?

Judge Phillips. That was a statement released by the State Department in September 1950 and is referred to in the 1950 report of our committee with the citation.

Now I have suggested that there is today a growing tendency to undertake to create basis for congressional enactments under the treaty-making power. In other words, in the absence of a treaty, and that that is indicated now by the President's Committee on Civil Rights report from which I quote:

The Human Rights Commission of the l'nited Nations at present is working on a detailed international bill of rights designed to give more specific meaning to the general principles announced in article 55 of the Charter : If this document is accepted by the United States as a member state, an even stronger base for congressional action under the treaty power may be established.

You will notice they say they are talking about civil rights.

Senator FERGUSON. Are you familiar, Judge, with the fact that when a bill was introduced in the Senate on the question of civil rights, the antilynch bill, I think Howard McGrath, former Attorney General, introduced it, had in it the fact that it would now be valid under the wording of the United Nations Charter indicating to carry out what the Commission had in mind?

Judge PHILLIPS. Yes. I think perhaps if that can be said to be a treaty dealing with those matters perhaps implementation might be constitutionally supported because they can certainly implement any valid treaty they enter into without reference to their delegated legislative powers.

Now if a treaty is not subject to these implementations, in addition to creating broad power to enact implementing legislation by Congress to which I have already referred, the treaty may perforce of its own self-executing terms have the force and effect of a legislative enactment affecting matters of local concern and traditionally regarded as within the reserve powers of the States.

A self-executing treaty, in addition to being an international contract, becomes municipal law of the United States in each of the several States and binding on the judges of each State, and anything in the Constitution or laws of their State to the contrary notwithstanding.

That is true only in the United States, and to a limited degree in France. Every other nation, including our neighbor, Canada, a treaty while it binds the contracting nations under international law, does not become internal law in such nation imposing duties or obligations upon its citizens 'unless it is implemented by legislation enacted in accordance with its constitutional process.

Now the new activity referred to by the late Chief Justice is certainly more than noticeable. I am going to refer to only one treaty, and that is genocide. I am not unmindful that in defining it they defined it as an international crime or crime which has been perpetrated against human groups which shocked the conscience of mankind and were contrary to moral law, and were abhorrent to all persons who have a proper and decent regard for the dignity of human beings, regardless of the national, ethnical, racial, or religious groups to which they belong, and that the end sought to be attained by this convention is wholly desirable.

But the definitions of genocide in the convention are vague and lacking in precision. They do not lay down a certain and understandable rule of conduct. A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.

One of the most serious, and I think there are many serious questions in this genocide, is the proposal ultimately to vest in an international criminal tribunal jurisdiction to try, convict, and sentence American citizens charged with the offense of genocide, without the safeguards which our Federal and State Constitutions guarantee to persons charged with domestic crimes.

The record will show that our representatives indicate that conventionally they propose such a convention. A separate ad hoc United Nations committee of 17 members was created by the General Assembly on December 12, 1950, to prepare a preliminary draft convention for the establishment of an international criminal court. A draft statute was completed in August 1951. It is significant that this statute expressly deprives a defendant of the right to be tried by a jury of his peers in the district in which the offense is charged to have been committed—a right we regard as fundamental, and affords no protection against the use of an involuntary confession as evidence against the accused, a device almost universally resorted to in the trial of persons accused of crime in the police states.

The court will permit the defendant to speak, but he is not required to speak. It has nothing to do with self-incriminating statements made involuntarily out of court, in my judgment. I disagree with the concept that we can deprive our citizens of these fundamental rights given in the Constitution with respect to trial for criminal of


fenses, but the report of the section of our organization, the American Bar Association, on international and comparative law, makes the statement that a United States citizen, although charged with an offense committed in the United States, if brought to trial by an international criminal court for an offense against international law, would not be entitled to the safeguards guaranteed by our Federal Constitution to persons charged with offenses against the United States on the theory that such constitutional safeguards have application only to domestic offenses and trials in our own domestic courts. I say I disagree with that, but that shows the extent to which the

I proponents of this new concept of the purpose and function of treaties are willing to go.

Senator FERGUSON. You mean the bar or committee felt?

Judge PHILLIPS. The section on international law with which our committee is crosswise.

Mr. HOLMAN. The section recommendation was not adopted by the bar.

Judge PHILLIPS. That is right. The section on international comparative law makes that assertion in their report. The house of delegates did not accept that, and we disagreed with it, but it indicates how far at least a segment of our people, good people, I think people of integrity and of purpose are willing to go to cure what they regard as social evils by this method.

Now we have proposed, and the house of delegates of our association, our official body, have approved a proposed amendment. The text of it is already before you, and I will not stop to read it. If adopted, the amendment will prevent a treaty from becoming internal law in the United States by force of its self-executing terms. It will modify the holding of Missouri v. Holland, and restrict the power of Congress in enacting legislation to implement a treaty to the legislative powers that it would have in the absence of such treaty and will negative the inherent power theory laid down by the broad language of United States v. Curtiss-Wright Corporation.

Senator FERGUSON. Could I interrupt you there?
Judge PHILLIPS. Surely.

Senator FERGUSON. Would it interfere with the philosophy that has been expressed by your international section?

Judge PHILLIPS. I am sure it would.

Senator FERGUSON. You see, that is an outside court for a matter made criminal.

Judge PHILLIPS. My answer to that is that as far as international crimes are concerned, Congress has power to define them and provide for their punishment, but it will be in the domestic courts of the United States and not in some foreign tribunal.

Senator FERGUSON. You think that the provision in the Constitution in relation to international crimes, in part that would allow that, would limit our ability in Congress to have the crimes triable in the United States court?

Judge PHILLIPS. I think so.
Senator FERGUSON. Not an international court?

Judge PHILLIPS. I do not believe that with this provision in the Constitution as we suggest that we would constitutionally bind this Government to adhere to an international court to try persons accused of offense against international law and certainly not to try

offenses which under our system are regarded as domestic. I think genocide deals with many things that are domestic and not international. If the amendment does not do that, it ought to be broadened.

Senator O'CONOR. Judge, may I ask you at that point whether you will express any opinion with respect to the language of the American Bar Association proposal as compared to the Bricker proposal now or later ?

Judge PHILLIPS. I will later if you desire. Senator FERGUSON. I do not mean to keep interrupting you, Judge. Judge PHILLIPS. I am used to that. Senator FERGUSON. I am disturbed about the ruling of the CurtissWright case which gives, let us say, absolute power because as you say a law that does not comply with the Constitution is unconstitutional, but it does not say that the treaty shall be in compliance or in conformance with the Constitution.

Then the Court said that the United States being a sovereign power has all the sovereignty and one of the parts of the sovereignty is the right to deal with foreign nations. That would give them the right to pass on the questions of an international court, would it not, by treaty?

Judge PHILLIPS. Yes.

Senator FERGUSON. And make, let us say, a crime committed, for example, here in the District of Columbia an international crime triable by that court if they could get jurisdiction.

Now your amendment, the words you read, did not seem to cover that kind of proposition.

Judge PHILLIPS. I think we change the Curtiss-Wright rule because we limit it to delegated power so far as enabling legislation is concerned.

Senator FERGUSON. So far as Congress is concerned, you are specific. You say it does not decrease the capacity of Congress nor does not diminish the capacity of Congress. But what about a treaty that we might pass?

Mr. HOLMAN. If I may interrupt, Judge, your last sentence which you called my attention to last night does that very thing because it is not merely the delegated powers but the delegated powers you have in the absence of anything in the treaty.

Judge PHILLIPS. Of course, under our proposed provision Congress cannot pass a law following a treaty that it could not pass if there had been no treaty. Your point is a little deeper.

Senator FERGUSON. Yes.

Judge PHILLIPS. Your point is whether or not you could enter into a treaty which would authorize, give jurisdiction to an international criminal court.

Senator FERGUSON. Let us take the genocide treaty.

Judge PHILLIPS. Of course, if I am right it conflicts with the provision of the Constitution. If I am wrong about that it perhaps should be spelled out more specifically. I do not believe you can take an American citizen and try him for any offense, especially in light of the fact that the Constitution gives the right to the Congress to define the punishment for international crimes.

I do not believe you can carry off a United States citizen and take him to a court in Timbuktu and try him there for an international crime.


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