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26 and 27 in the Constitution of 1946, which is a reenactment of previous constitutional provisions, in appendix A to this report.)

The discussion of this subject would not be complete without some reference to self-executing and executory treaties. This question is of especial importance in countries, such as the United States, where treaties are made the supreme law of the land by the Constitution. The question is not, of course, answered by the Constitution itself, which says that all treaties shall be the supreme law of the land. The necessity of legislative action to enable treaties to be enforced by the courts is a matter for judicial determination. The leading case most often cited on the subject is Foster v. Neilson (2 Peters 253) in which Chief Justice Marshall held that the treaty by which Spain ceded Florida to the United States was not self-executing in the following language:

“A treaty is, in its nature, a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be acomplished; especially, so far as its operation is infraterritorial; but is carried into execution by the sovereign power of the respective parties to the instrument. In the United States, a different principle is established. Our Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract--when either of the parties engages to perform a particular act the treaty addresses itself to the political, not to the judicial department; and the legislature must execute the contract, before it can become a rule for the court."

This decision has been relied on by those who maintain that the Genocide Convention now before the Senate for its advice and consent to ratification is not self-executing. Those who so argue, however, seem to be unaware that Chief Justice Marshall reversed his interpretation of this same treaty a few years later in United States v. Percheman (7 Peters 51) and after examining the Spanish version of the treaty, found it was the intention of the contracting parties that the treaty should be self-executing and that such intention was binding upon the Court. In reaching this conclusion, Chief Justice Marshall, construing the words of the treaty, said: “Although the words 'shall be ratified and confirmed' are properly words of contract stipulating for some future legislative act, they are not necessarily so. They may import that they 'shall be ratified and confirmed' by force of the instrument itself.”

The rule that the intentions of the contracting parties govern in determining whether a treaty is self-executing or executory obtains not only in the United States, but it is a rule of international law and has been so held by the Permanent Court of International Justice at The Hague. In 1927 a dispute arose between the Free City of Danzig and the Government of Poland over the jurisdiction of Danzig courts to hear and determine pecuniary claims of Danzig railway officials against the Polish Railways Administration under an agreement between the two high contracting parties dated October 22, 1921. Poland contended that while the two governments had certain rights and obligations under the agreement, no rights were conferred on individuals by such an international agreement. The Permanent Court conceded that as a general rule an international agreement "can not, as such, create direct rights and obligations for private individuals," but it was of the opinion that such a result could be achieved where States definitely sought to achieve it. The Court found it to be the intention of the parties to the agreement of October 22, 1921, that the Danzig courts should have jurisdiction. Poland's contentions were accordingly rejected and those of Danzig upheld.16

Finally, it must not be overlooked that in lisputes between the contracting parties to a treaty as to its proper interpretation, the views of one of the parties or of its national courts are not necessarily controlling. Where agreement cannot, be reached if the case is sufficiently important, it is likely to be carried to an international court. The Genocide Convention, for example, makes provision for the final decision of disputes as to its interpretation, application or fulfillment by the International Court of Justice at The Hague. Any treaty ratified by the United States containing such a provision would not be subject to the Connally reservation withholding from the compulsory jurisdiction of the Inter

18 Advisory Opinion No. 15, Mar. 3, 1928, P. C. 1. J. Publications, Series BP. 447 ; Hudson, World Court Reports, vol. II, p. 236, at pp. 246–249. An excellent discussion of treaty provisions which are "self-executing" and not "self-executing" is contained in Manley 0. Hudson, Charter Provisions on Human Rights in American Law, American Journal International Law, July 1950, p. 543.

national Court matters regarded by the United States as within the domestic jurisdiction of the United States. The Genocide Convention, and any future treaties containing provisions for reference of dispute to the International Court of Justice, or other international tribunal, being of later date, would supersede conflicting provisions of previous laws or treaties of the United States.

EXHIBIT M

[American Bar Association] MODERN CONSTITUTIONAL PROVISIONS CONCERNING THE TREATY-MAKING POWER

The summaries and texts collated herein are based upon or reproduced from Constitutions of Nations, a compilation in the English language of existing constitutions of the nations of the world, collected, annotated, and published by Amos J. Peaslee in three volumes, The Rumford Press, Concord, N. H., 1950, $22.50 per set. Unless otherwise stated, all references are to that publication. A few constitutions of miniature states or in which treaty-making is completely within the prerogative of the monarch, are omitted. Afghanistan, Fundamental Principles, October 31, 1931 (Peaslee, I, 21-34).

Art. 7. Rights of the King. Conclusion of peace and treaties generally,

Art. 46. Contracts, agreements, and grants of concessions (monopolies), whether relating to trade, industry, agriculture, etc., and whether Afghan or foreign, will be concluded with the approval of the National Council. Albania, Constitution of, March 15, 1946 (Peaslee, I, 39-50).

Art. 54 (8). The Presidium of the People's Convention ratifies international treaties, except when it considers it necessary for ratification to be made by the People's Convention.

Art. 59. The Government carries out treaties with foreign governments and other international obligations.

Art. 60. The Government is composed of the Prime Minister, deputy Prime Minister, the Ministers, Chairman of Committee for Economic Planning, and Chairman of the Committee of Control. Argentine Republic, Constitution of, March 16, 1949 (Peaslee, 1, 58-88).

The President concludes and signs treaties, subject to approval of Congress. Art. 68 (19) and Art. 83 (14).

Art. 22. This Constitution, the laws of the nation dictated by Congress in consequence thereof, and treaties with foreign powers are the supreme law of the nation; and the authorities of each Province are obliged to conform thereto, notwithstanding any rule to the contrary which the provincial laws or constitutions may contain, with the exception, so far as the Province of Buenos Aires is concerned, of treaties ratified following the Pact of November 11, 1859.

Art. 95. The Supreme Court of Justice and the inferior courts of the nation shall have jurisdiction of all cases turning upon points governed by treaties with foreign nations. Australia (Peaslee, I, 93–114). See Great Britain and the British Common

wealth. Belgium, Constitution of, February 7, 1831 (Peaslee, I, 127-143) with amend

ment. Art. 68. The King makes treaties of peace, of alliance and of commerce. Treaties of commerce, and treaties which may burden the State, or bind Belgians individually, shall take effect only after having received the approval of the two houses. Bolivia, Constitution of, November 23, 1945 (Peaslee, I, 153-176) as amended.

Art. 94 (2). The President shall have power to negotiate and conclude treaties with foreign nations and to exchange them when approved by Congress.

The Congress in joint session shall approve or reject international treaties. and conventions of all kinds (arts. 59 (13) and 60 (5)).

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Brazil, Constitution of, September 24, 1946 (Peaslee, I, 181–228).

The President shall have exclusive power to conclude international treaties and conventions, subject to ratification of the National Congress. Art. 87.

The National Congress shall have exclusive power to give final decision respecting treaties and conventions celebrated with foreign states by the President of the Republic. Art. 66 (I).

The Federal Supreme Court shall have power to judge in ordinary appeal cases decided by local judges based on contract or treaty between a foreign state and the Union. Art. 101, II (b). And to judge on special appeal when the decision is contrary to the text of a federal treaty or law. Art. 101, III (I). Bulgaria, Constitution of, December 4, 1947 (Peaslee, I, 233–245).

Art. 35 (9). The Presidium of the National Assembly ratifies and denounces treaties concluded by the Government.

Art. 39. The Government consists of the President and Vice-Presidents of the Council of Ministers, the Ministers and the Presidents of certain commissions. Burma, Union of, Constitution of, September 24, 1947 (Peaslee, I, 250–294).

The exclusive legislative authority of the Parliament shall extend to the entering into and implementing of treaties and agreements with other countries. Art. 92 (1), and Union Legislative List 1, 2 ().

Art. 135 (1-a). The High Court shall have exclusive original jurisdiction in all matters arising under any treaty made by the Union.

Art. 213 (1). Every international agreement to which the Union becomes a party shall be laid before the Parliament.

(2). No international agreement requiring or likely to require legislation in order to give it effect thereto shall be ratified except with the approval of the Parliament.

(3) No international agreement involving a charge upon the revenues of the union shall be ratified unless the terms of the agreement shall have been approved by the Chamber of Deputies.

Art. 214. No international agreement as such shall be part of the municipal law of the Union, save as may be determined by the Parliament. Byelorussian Soviet Socialist Republic, Constitution of, February 19, 1937

Peaslee, I, 299–314). Art. 43 (g). The Council of Ministers of the B. S. S. R. directs relations with foreign states in accordance with the general procedure established by the U.S. S. R. concerning relations of the United Republics with foreign States. See Union of Soviet Socialist Republics. Canada (Peaslee, I, 320_366). See Great Britain and the British Common

wealth. Chile, Constitution of September 18, 1925, as amended (Peaslee, I, 412–436).

The President shall conclude and sign treaties. Before their ratification they must be presented to the approval of Congress. Art. 72 (16), Art. 43 (5). China, Constitution of December 25, 1947 (Peaslee, I, 445–464).

Art. 38. The President shall, in accordance with the provisions of the Constitution, exercise the powers of conclusion of treaties.

Art. 58. Prior to the submission to the Legislative Yuan of any treaties

*, the President and the heads of the various ministries and commissions of the Executive Yuan shall present the same to the Executive Yuan Council for discussion and decision.

Art. 63. The Legislative Yuan shall have power to decide upon conclusion of treaties. Columbia, Constitution of February 16, 1945 (Peaslee, I, 469–599).

The President shall conclude treaties and conventions with foreign powers, which shall be submitted for the approval or rejection of Congress. Art. 76 (22), Art. 120 (20). Costa Rica, Constitution of December 9, 1871, as amended (Peaslee, I, 503-522).

The Executive shall enter into treaties and conventions with the goírnments of other nations and exchange them after approval and ratification by the Congress. Art. 82 (4), Art. 109 (9).

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Cuba, Constitution of, July 5, 1940 (Feaslee, I, 526-596).

The President shall make treaties with other nations, which he must submit for the approval of the Senate, except peace treaties which must be approved by Congress. Art. 122 (h), Art. 112 (g). Czechoslovakia, Constitution of, June 9, 1948 (Peaslee, I, 602-639).

Sec. 74 (1). The President of the Republic shall negotiate and ratify international treaties. Political treaties, and economic treaties of a general character, as well as such treaties as require an Act to be carried into effect, shall require enactment by the National Assembly prior to ratification. Treaties involving alteration of State boundaries shall be enacted by the National Assembly in the form of a Constitutional Act (section 166). The negotiation of international treaties and agreements which do not require enactment by the National Assembly and where ratification is not a condition, may be delegated by the President to the Government and, with the consent of the Government, to individual members thereof. On what conditions economic treaties of a general character may be carried into effect even prior to the sanction of the National Assembly being expressed, shall be prescribed by Act. Denmark, Constitution of, June 5, 1915, with amendments (Peaslee, I, 644-654).

Art. 18. Without the consent of the Rigsdag, the King shall not ... make or dissolve alliances, or conclude or terminate commercial treaties, cede any part of the country, or undertake any engagement which may alter existing constitutional conditions. Dominican Republic, Constitution of, January 10, 1949 (Peaslee, I, 658–676).

The President shall have power to conclude treaties with foreign countries, being obliged to submit the latter to the approval of Congress without which they shall have no validity nor be binding on the Republic. Art. 33 (15), Art. 49 (7). Ecuador, Constitution of, December 31, 1946 (Peaslee, I, 680–716).

The President of the Republic has the power and duty to enter into treaties and ratify them, having first secured the approval of Congress, and to exchange ratifications. Art. 92.

The Congress approves or disapproves public treaties and other conventions, which may not be ratified or exchanged without this approbation. Art. 53 (15).

Treaties and conventions will be considered by the Congress in joint session in a single discussion. Art. 71. The Constitution is the supreme law of the Republic. Therefore, any laws

pacts or treaties which are in any way contradictory to it or which depart from its text have no validity. Art. 189. Egypt, Constitution of, April 30, 1923 (Peaslee, I, 721-736). Art. 46. The King concludes treaties

Treaties of peace, of alliance, of commerce, of navigation, as well as those which involve either a modification of the territory of the state, or a diminution of its sovereign rights, or expenditure of state funds, or which are prejudicial to the public or private rights of Egyptian citizens, will not be valid except after having received the consent of Parliament. El Salvador, Constitution of August 13, 1886, as amended (Peaslee, I, 740–764).

The Executive concludes treaties and submits them to the ratification of the National Asembly, Art. 91 (7).

It is the duty of the National Assembly to ratify, amend, or reject treaties or conventions entered into by the Executive with other nations; but no treaty or convention which in any way restricts or affects the exercise of the right of insurrection, or violates any constitutional provision, shall ever be ratified. Art. 68 (29). Finland, Constitution of July 17, 1919 (Peaslee, I. 777-807).

Art. 33. The President shall determine the relations of Finland with foreign powers, provided that every treaty with a foreign power must be ratified by the Diet in so far as it contains stipulations falling within the domain of legislation, or if the Constitution requires such ratification for other reasons. France, Constitution of, September 28, 1946 (Peaslee, II, 8-24).

The President of the Republic shall sign and ratify all treaties. Art. 31. Art. 26. Diplomatic treaties duly ratified and published shall have the force of law even when they are contrary to internal French legislation; they shall re

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quire for their application no legislative acts other than those necessary to ensure their ratification.

Art. 27. Treaties relative to international organization, peace treaties, commercial treaties, treaties that involve national finances, treaties relative to the personal status and property rights of French citizens abroad, those that modify French internal legislation as well as those that involve the cession, exchange, or addition of territories, shall not become final until they have been ratified by an act of the legislature. Great Britain and the British Commonwealth. See quotation in the text, from

A. D. McNair, The Law of Treaties. According to British constitution law, the conclusion and ratification of treaties are within the prerogative of the Crown. Such treaties as affect private rights and, generally, as require for their enforcement a modification of the common law or of a statute must receive parliamentary assent through an enabling Act of Parliament. Oppenheim's International Law, 7th ed. by Lauterpacht, Vol. I (1948), p. 38.

Within the British Empire there is a well-established rule that the making of a treaty is an executive act, while the performance of its obligations, if they entail alteration of an existing domestic law, requires legislative action. Unlike some other countries, the stipulations of a treaty duly ratified do not within the Empire, by virtue of the treaty alone, have the force of law. If the national executive, the government of the day, decide to incur the obligations of a treaty which involve alteration of law, they have to run the risk of obtaining the assent of Parliament to the necessary statute or statutes. To make themselves as secure as possible, they will often in such cases before final ratification seek to obtain from Parliament an expression of approval. But it has never been suggested, and it is not the law, that such an expression of approval operates as law, or that it in law precludes the assenting Parliament or any subsequent Parliament from refusing to give it sanction to any legislative proposals that may subsequently be brought before it. Lord Atkin, speaking for the Judicial Committee of the Privy Council in Attorney-General of Canada v. Attorney-General of Ontario and Others (1937), A. C. 326, quoted by Robert B. Stewart in Treaty Relations of the British Commonwealth of Nations, New York, Macmillan Co., 1939, p. 241. Dr. Stewart's work contains an excellent treatment of this and other phases of treaty-making by members of the British Commonwealth. See especially Chap. IX entitled "Present-day Treaty-making Procedure.” The practice of the Labor Government to lay treaties before Parliament prior to ratification is covered, loc. cit., p. 235, n. Greece, Constitution of, June 1-14, 1911 (Peaslee, II, 51-66).

Art. 32. The King concludes treaties. Nevertheless, treaties of commerce and any others granting concessions concerning which, according to other provisions of the present Constitution, nothing can be determined without a law, or which lay a burden upon Greeks personally, are not valid without the consent of the House of Representatives. Guatemala, Constitution of, March 11, 1945 (Peaslee, II, 71-108).

The President concludes treaties subject to the approval of Congress before ratification. The favorable vote of two-thirds of the whole number of deputies forming the Congress is required for approval. No treaty, convention, pact, or agreement may be approved that affects the integrity, sovereignty, or independence of the Republic, or which is contrary to the Constitution. Art. 119 (9), Art. 137 (6). Haiti, Constitution of November 22, 1946 (Peaslee, II, 112-113).

Art. 84. The President makes all treaties or international conventions, subject to the sanction of the National Assembly, to which he likewise must submit all executive agreements for ratification. Honduras, Constitution of March 28, 1936 (Peaslee, II, 135-158).

The Executive Power concludes treaties, submitting them to the ratification of Congress at its next session. Art. 101 (25), Art 121 (18). Hungary, Constitution of January 31, 1946 (Peaslee, II, 162–167).

Art. 11 (1). The President of the Republic shall, through the government, conclude agreements with foreign powers; should, however, the subject of a certain agreement affect the competence of legislation, the agreement cannot be concluded until after having been duly approved by the National Assembly.

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