of that party, the Council shall so report, and shall make no recommendation as to its settlement."

This result of the law, both internal and international, places upon the United States Senate a heavy constitutional responsibility when treaties are submitted to it which might change the law of the land, particularly the law of the States which are represented in that body by their own Senators and to whom they must look to safeguard their rights and interests as well as those of their citizens. Mr. Justice Holmes' holding in Missouri v. Holland that the subjects of treaty making "must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago" must be accepted as law, good or bad; but, a fortiori, the impact of the construction of the Constitution in that case upon the effect of all treaties proposed by the Executive which might affect internal law and conditions in the United States must now, more than ever, be carefully weighed before they are made a part of the supreme law of the land. In its international aspects, it is important to inquire into the relative position of the United States in the matter of the enforcement of treaties as legislative acts as compared with the positions of other members of the family of nations. Such a comparison has become feasible through the publication recently of a compilation in the English language of existing constitutions of the nations of the world. Examination of this invaluable work will throw interesting light upon many subjects of comparative constitutional law.

Annexed hereto as appendix A to this report will be found summaries and texts of provisions concerning the treaty-making power collated principally from that work. They show the following striking comparisons:

The United States appears to be the only government in the world today where treaties become a part of the law of the land on concurrence of two-thirds of the Senators present, without the approval of the whole national legislative body. It is true that in Mexico the senate may, by a majority vote, approve a treaty, which then becomes the supreme law of the land, but the treaty must, in the first instance, be submitted to congress. In Argentina treaties are the supreme law of the nation, but they must be approved by the congress. Moreover, these three are the only federal governments in which treaty law overrides internal state laws and constitutions in conflict therewith. In this respect these three Governments are not in positions of mutuality with other contracting parties when questions of actual performance of treaty obligations arise.

While it is the general rule of international law that all treaties duly made are binding upon the signatories, there is no way by which a national legislature can be forced to legislate in fulfillment of treaties which have not been submitted in advance to its approval. "It will be essential to keep in mind the distinction between (1) the formation, and (2) the performance of the obligations constituted by a treaty 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 treaty which involve alteration of law, they have to run the risk of obtaining the assent of Parliament to the necessary statute or statutes."

" 10

Discussions in the United States on the question whether Congress is morally bound to pass the necessary legislation to give effect to a treaty or may examine it critically to determine if it is in the interest of the United States that the necessary enabling legislation should be passed have arisen on a number of occasions in the past. "The difficulty in the past has arisen from conflict between the two Houses (the Senate and House of Representatives), but whatever opinion there may be as to the duty of the lower House, it is obvious that there is no way of forcing it to pass the bills which make an appropriation or contain the provisions necessary to make a treaty effective, where the treaty itself is not self-executory.'

Failure to legislate in such cases is not unversally regarded as a breach of international bona fides. "It is the view of the United Kingdom Government

Constitutions of Nations, collected, annotated, and published by Amos J. Peaslee, 3 vols. Rumford Press, Concord, N. H., 1950. $22.50 per set.

10 Judicial Committee of the Privy Council in Attorney-General of Canada v. AttorneyGeneral of Ontario and Others (1937), A. C. 326.

11 Legislative Processes. National and State, by J. P. Chamberlain, ch. XIX, Lawmaking and Foreign Affairs, p. 325.

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that parties who enter into a treaty engagement are expected ipso facto to bring their municipal law into conformity with the treaty. The fact that they do not do so does not, however, strictly speaking, in itself give rise to a right of complaint on the part of the other party. A right of complaint only arises when the treaty is actually broken by some act which is based on the municipal law in question instead of being based on the treaty provision and is incompatible with the latter." 12

Rejecting the principle that treaties can make or change internal law, the Constitutions of Burma and Ireland expressly provide that treaties shall not become a part of municipal law without an act of the national legislature. The constitutions of a number of other nations place similar restrictions on the treaty-making power by declaring that treaties in conflict with the constitution shall not be valid (Ecuador, El Salvador, Guatemala, Japan, Nicaragua).

The ratification of treaties without the approval of the national legislature is the exception rather than the rule in modern constitutional law. There are only four nations, in addition to the United States, in which treaties may be ratified with the advice and consent of the Senate only, namely, Mexico, Liberia, Cuba, and the Philippines. The constitutions of 24 nations require all treaties to be submitted to the approval of the national legislatures, while the largest group of 28 requires parliamentary approval of all treaties which affect internal law, the rights of citizens, or which need implementation by the legislature. In the last-mentioned group, treaties are divided into two general classes according to subject matter, first, those within the prerogative of the executive power alone, and, secondly, those requiring approval by the national representative body so as to safeguard the right of the people to be governed only by laws enacted with their consent.13 In forming their written constitution this group of nations seems to have followed as their model the practice of Great Britain. British practice has been authoritatively set forth by Dr. Arnold D. McNair, an outstanding English authority on international law and now a judge of the International Court of Justice at The Hague. On this subject he writes:

"The United Kingdom has no single document which can be referred to as 'the constitution' such as nearly every other country possesses. Our Constitution is the net result of the operation of the common law, of a number of important statutes, and of a large body of constitutional usages or conventions. Many treaties have nothing to do with the law of the land and never come in question in any court of law, for instance, treaties of guaranty, such as the treaties for the neutralization of Belgium or the Locarno Treaty of Mutual Guaranty. But in the United Kingdom whenever a treaty (other than treaties relating to belligerent action), or anything done in pursuance of it, is likely to come into question in a court of law, the questions will at once arise whether the provisions of the treaty accord with the existing law of the land and whether any action proposed to be taken by the Crown to execute the treaty is authorized by the existing law of the land. If the answer to either of these questions is in the megative, the Crown must induce Parliament to legislate so as to make the necessary change in the law or to equip the Crown with the necessary power to execute the treaty. If Parliament declines to do so, the Crown will not ratify the treaty; if by imprudence the Crown has already ratified the treaty, the United Kingdom is bound by it (for the Crown is internationally omnicompetent in the matter of treaties), and the Crown must do its best to extricate the country from an embarrassing situation. Even the fact that the treaty has been ratified and is internationally binding upon the United Kingdom, does not enable a British court to give effect to it municipally if it should conflict with the law of land. Nevertheless, a duty to make reparation for any resulting breach of an international obligation would arise." 14

The classification of treaties into those which may be ratified without parliamentary approval and those which require such approval according to their subject matter is well illustrated in the written constitution of France. (See arts.

12 The Law of Treaties, British Practice and Opinions, by Arnold D. McNair, Oxford, 1938, pp. 7-8.

13 In Switzerland, treaties for an indefinite period, or for more than 15 years' duration, are subject to a national referendum. The constitutions of Lebanon and Syria require approval by the legislative body of treaties which cannot be denounced at the expiry of any year.

14 McNair, The Law of Treaties, ibid. The standard work on this subject is Treaties, Their Making and Enforcement, by Samuel B. Crandall. The second edition was published in 1916. Washington, John Byrne & Co. Treaty-Making Procedure, a Comparative Study, compiled by Ralph Arnold, with an introductory note by Dr. Arnold McNair, London, Humphrey Milford, 1933.

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.15

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

15 Advisory Opinion No. 15, Mar. 3, 1928, P. C. I. 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 O. 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, I, 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 Commonwealth.

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

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)).

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 (5).

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 Commonwealth.

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

The President shall conclude and sign treaties. they must be presented to the approval of Congress.

Before their ratification
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 7, 1871, as amended (Peaslee, I, 503-522). The Executive shall enter into treaties and conventions with the gornments of other nations and exchange them after approval and ratification by the Congress. Art. 82 (4), Art. 109 (9).