there shall be but one Supreme Court, and that the trial of all cases arising under treaties shall take place in the Federal courts (article III, secs. 1 and 2).

We just cannot create an international court to be supreme to our one Supreme Court or try them in international courts, because the Constitution provides that crimes arising under treaty shall be subject to the jurisdiction of our Federal courts.

The adoption of the proposed amendment would remove the doubt expressed by Mr. Justice Holmes in Missouri v. Holland that treaties must be made in pursuance of the Constitution, because article VI now reads that treaties need only be made under the authority of the United States, which may mean no more than "the formal acts prescribed to make the convention." Namely, that if we conclude any treaty on any subject, and the Senate agrees to it by a two-thirds vote, then that is a treaty under the authority of the United States without reference to any other provisions of the Constitution. That is what Mr. Justice Holmes means, and it cannot mean anything else.

The proposed amendment will prevent further development of the dicta of Mr. Justice Sutherland in the Curtiss-Wright case (1936, 299 U. S. 304) that the treaty power does not rest in grant in the Constitution-we take it another step-but is inherent in the sovereignty of the Nation, a view which found support in the minority opinions of the Supreme Court in the recent steel-seizure case (Youngstown Co. v. Sawyer (1952, 343 U. S. 579)).

We see this progression of ideas about this extent, this unlimited extent of the treatymaking power and we are now having it brought forward that it does not rest in grant at all, it is inherent in the Government.

Another series of objections are grounded on the argument that the proposed amendment would seriously curtail the treatymaking power of and prevent the Government from entering into necessary treaties. I shall undertake to show that these arguments are not tenable.

The amendment approved by the American Bar Association would not interfere in any way with the conclusion of treaties under article VI of the Constitution as it now stands. The first sentence of the amendment that

A provision of a treaty which conflicts with this Constitution shall not be of any force or effect

would have no bearing on the negotiation and ratification of treaties, except to admonish the American negotiators that they are subject · to the Constitution and derive no extra constitutional authority or power because they happen to be at the time conducting negotiations with a foreign government.

I would like to call attention to a sentence in the opening part of Secretary Dulles' statement which I think he did not give sufficient consideration to when he said:

Each of the resolutions now before this committee would deprive the Nation of treatymaking power in large areas. They would deny to all treaties the force of law, making their enforcement depend on subsequent action of Congress.

Senator SMITH. That is ridiculous, is it not, that statement? Mr. FINCH. The amendments themselves have no bearing on the negotiation and conclusion of treaties, giving them all the interna

tional force and all the validity in our courts which they have as political instruments of the Government.

Senator WATKINS. As between us and other nations.

Mr. FINCH. And other nations. It is only when the treaty becomes legislative in character as bearing on the people of the United States as distinguished from its Government that these amendments have any effect or would have any effect within the United States.

The second sentence of the American Bar Association reads:

A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty.

The adoption of the first clause of this provision would have no more effect upon the treatymaking power of the United States than similar provisions of law have upon the treatymaking powers of substantially all other nations of the world. An analysis of modern constitutional provisions concerning the treatymaking power was printed in the Report of the Committee on Peace and Law for September 1, 1950.

I would like to suggest here, Mr. Chairman, the State Department has supplied a memorandum about some of these provisions. This report of the Committee on Peace and Law of September 1, 1950, contains an analysis of the treaty provisions of all the nations of the world which at that time had constitutions. Anyone can read what the State Department says and can read what we say in our report and decide for themselves whether our statement is correct or not.

Senator WATKINS. Has that been made a part of the record? Mr. FINCH. I would suggest you make it a part of the record. Mr. SMITHEY. That was made part of the record in Senate Joint Resolution 130, and the State Department submitted a similar compilation when Mr. Dulles appeared. The compilation of the American Bar appears in the hearings on Senate Joint Resolution 130, beginning at page 496. The State Department compilation appears in the hearings on this resolution at the conclusion of Mr. Dulles' formal

statement.

Senator SMITH. Suppose we make it a part of the record of this case. Senator WATKINS. I would like to have it available.

Mr. FINCH. I have a copy. I would be glad to submit it for the record.

(The information follows:)

MODERN CONSTITUTIONAL PROVISIONS CONCERNING THE TREATYMAKING 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 treatymaking 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 unon 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, 1927 (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 governments of other nations and exchange them after approval and ratification by the Congress. Art. 82 (4), Art. 109 (9).

Cuba, Constitution of, July 5, 1940 (Peaslee, I, 526–396)

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. 142 (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.

30572-53- -71

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 de part 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 Assembly, 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 insofar 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 require 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 (1949), 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 Comonwealth of Nations, New York, Macmillan Co., 1939, p. 241. Dr. Stewart's