3. In some cases the Government approaches Parliament in advance of the time of conclusion of the treaty in order to explain its position and inform it of its intentions as regards the treaty under consideration, so that it may be assured of the Parliament's approval when the latter is subsequently called upon to authorize ratification. IV. IMPORT OF TREATIES ON INTERNAL LAW 1. Priority of treaties over law.-Such priority is established by articles 26 and 27 of the Constitution. Article 26 of the Constitution is worded as follows: "26. Diplomatic treaties which may have been regularly ratified and published have the force of law even should they be contrary to French legislation, no legal measures being necessary to ensure their implementation other than those which were required for their ratification." This article primarily establishes two principles: that of the independence of a treaty as regards a law and that of the priority of a treaty over a law. (a) Treaties have force of law; that is, there is no need for a law to be enacted covering their provisions in order to make them operative. A treaty, as such, is binding and obligatory on public authorities as well as on individuals. (b) In the event of conflict between a treaty and a law, preference is given to the treaty. The treaty has priority over the law regardless of whether the conflicting law was enacted before or after the treaty. In effect, priority of a treaty over a law is the rule. It comes from the priority vested in treaty over law by the Constitution, by virtue of the above-mentioned article and of article 27 [28] which stipulates: "Diplomatic treaties which have been regularly ratified and published having an authority superior to that of internal laws * The regulations established by a treaty cannot be abolished or amended except by denunciation of the treaty. 2. Conditions required for the implementation of treaties.-Two conditions are required: (a) In the first place, when authorization by law for the ratification of a treaty is required under article 27 of the Constitution, it is necessary for the law to have been enacted. (b) In the second place, it is necessary for the text of the treaty to have been published. This is the application of the principle that a legal regulation, whatever may be its origin (treaty, law, administrative rules, etc.) cannot be binding unless it has been brought to the cognizance of those whom it concerns. Publication is made in the form of a notice in the Journal Officiel. The offices of the Ministry of Foreign Affairs are now studying means of assuring publication of all international agreements of every type coneluded by the French Government. V. DENUNCIATION OF TREATIES Article 28 of the Constitution stipulates: "28. Diplomatic treaties which have been duly ratified and published, having an authority superior to that of internal laws, their dispositions may not be abrogated, amended, or suspended unless by normal denunciation notified through diplomatic channels. In the case of treaties mentioned in article 27, denunciation must be authorized by the National Assembly, except as regards commercial treaties." 1. Since treaties "enjoy an authority superior to that of internal laws," a law cannot abrogate, amend, or suspend a treaty. 2. Treaties cannot be abrogated except "by regular denunciation notified through diplomatic channels." This clause of the Constitution intends to ensure respect for international law. The legality of the denunciation is in conformity with international law. If, for example, a treaty contains a clause outlining the conditions of denunciation, denunciation shall be accordingly made. etherlands (note from Netherlands Ministry of Foreign Affairs, dated Febry 11, 1953): 1. No procedures are required to bring into force treaties or other international agreements, except those prescribed in the treaty or agreement it self. A treaty can only be ratified by the Queen after it has been approved by the States-General. 2/3. No legislative or executive action is required by the present Constitution in order that a treaty or an agreement may be applied as part of the domestic law. All treaties and agreements are published, if possible, by the Minister of Foreign Affairs in the "Tractatenblad” (Netherlands Treaty Series). 4/5. When a treaty or other international agreement contains provisions in conflict with existing law, no special legislative action is required by the present Constitution before it is considered to override such existing law. However, it is customary practice that legislation be enacted before the entry into force of the treaty or agreement, in order to enable effect to be given to such provisions. 6. No scientific distinction is made, in the Netherlands, between selfexecuting treaties and non-self-executing treaties. United Kingdom (no summary statement has as yet been received from the United Kingdom. A despatch from the American Embassy in London, dated March 13, 1953, calls attention to discussion on March 11, 1953, in the House of Lords on the desirability of Parliamentary ratification of treaties before they come into force. An extract from Hansard (Lords), vol. 180, no. 43, March 11, 1953 (cols. 1284–1290), transmitted as an enclosure to the despatch contains a statement of the British position as summarized by Viscount Swinton. A portion of that statement is set out below). Ratification of treaties 2.45 p. m. Lord VANSITTART. My Lords, I beg to ask the Question which stands in my name on the Order Paper. [The Question was as follows: "To ask Her Majesty's Government whether it should not in future be a rare exception that important Treaties rightly negotiated in privacy, should come into force on the day of signature, without need for ratification, thus depriving Parliament of any opportunity for discussions before being confronted with an accomplished fact."] Viscount SWINTON. My Lords, I am afraid the answer is rather long, but as this is an important subject I think the House would probably prefer that I should read it rather than circulate it in the OFFICIAL REPORT. The noble Lord has raised a question relating to the practice of Her Majesty's Government, but before I deal with that it is perhaps necessary for me to restate the position in regard to the ratification of international Agreements, both in International Law and in relation to our Constitution. Internationally, there is never any necessity for ratification unless the Agreement so provides. It is entirely for the parties to decide, in the light of their own internal constitutional and political positions, whether or not they will make the Agreement subject to ratification. If an Agreement is not made subject to ratification and is expressly to come into force at the moment of its signature, that is, internationally, perfectly valid. So far as our own constitutional position goes, as the noble Marquess, Lord Reading, said on February 18, when the noble Lord raised this question apropos of the Sudan Agreement, ratification is part of the treaty making power in the Prerogative and is the executive act of the Government of the day. There is, under our Constitution, nothing corresponding to the neces sity for Senatorial ratification of Treaties obtaining under the United States constitution. Strictly speaking. Her Majesty's Government never have to obtain Parliamentary consent before making or ratifying a Treaty. Having said that, I should now come down to what happers in practice, which I understand is really the main object of the noble Lord's question. Ratification occurs in practice, and it is desirable that it should so ocenr in two types of international Agreement. The first Is where we sou'd rot, in fact, be able to implement the Treaty without legislation It is them necessary to ask Parliament for the legislation, and since Her Majesty s Government cannot be certain that Parliament will grant it. It is roosssary that the Treaty should be subject to ratification, and that we should get the legislation passed between the time when we signed the Treaty and the time when we propose to ratify it. The other case is that in which the political importance of a Treaty is so great that Her Majesty's Govern mung feel obliged, as a political necessity, but not as a legal necessity, to enent Parliament about it before becoming committed. Here again, It would be customary to make the coming into force of the Treaty dependent upon ratification and to stage a debate about it in Parliament at some point after signature, so that, if Parliament clearly disapproved, it would still be open to Her Majesty's Government not to ratify the Agreement. That is the general position. So the answer to the noble Lord's Question is that, leaving aside the cases where a Treaty requires domestic legislation to become effective, it must rest with the Government of the day to decide whether a particular Treaty should be reserved for Parliamentary approval. Lord VANSITTART. I thank the noble Lord for his statement and I hope I may ask for time to digest it. In view of the repeated outbursts of General Neguib, a procedure which admitted of no discussion before we were faced with an accomplished fact might not be acceptable to some of us. Viscount SWINTON. It is always a matter of opinion by any individual as to whether or not the Government of the day should reserve a Treaty for Parliamentary approval before it ratifies it; but, of course, the Government of the day, and nobody else, can take that responsibility. It does so having regard to all the circumstances and with the knowledge that Parliamentary resources in relation to the Government are not exhausted, and that if Parliament disapproves of the action of the Government in advising the exercise of the Royal Prerogative, it is quite open to Parliament to pass a vote of censure on the Government, and that would be the end of the Government. Treaty Affairs, Office of the Legal Adviser, Department of State, Washington, il 2, 1953.) MORANDUM RELATING TO THE MAKING OF INTERNATIONAL AGREEMENTS OTHER THAN TREATIES There has been much discussion concerning the subject of so-called executive eements. Often during the past few years it has been stated that the pracof entering into executive agreements has been adopted in order to circumt the requirements of the United States Constitution (art. II, sec. 2) reting the making of treaties. It has been asserted that large and increasing bers of executive agreements are being made, and comparatively few treaties. as been intimated that fundamental constitutional rights of Americans are g bartered away, or at least threatened, by the making of international eements. is hoped that the following discussion will clarify the situation. he subject of so-called executive agreements is a complex one. Generalized ements which would imply that there is any concerted attempt, desire, or ination to nullify or circumvent the treatymaking provision in the Constituare made without a clear appreciation of the normal processes of conducting ign relations. There is nothing new in the practice of making various interonal agreements other than treaties. It has been the practice of this Govnent, during the whole period of the Nation's existence, in intercourse with ign governments, to enter into agreements other than treaties to deal with y problems or questious on an executive or administrative level, where this d be done consistently with, and within the framework of, existing law. hroughout the history of this country, both treaties and international agreets other than treaties have been made in conducting its foreign relations. existence and validity of international agreements other than treaties has à recognized not only by the Supreme Court of the United States but also tatutes of the United States. Such agreements effected prior to 1950 were ished in the United States Statutes at Large pursuant to a law reading as ows inter alia: The Secretary of State shall cause to be compiled, edited, indexed, and pubd, the United States Statutes at Large, which shall contain * ** all treaties hich the United States is a party that have been proclaimed since the date of adjournment of the regular session of Congress next preceding; all interonal agreements other than treaties to which the United States is a party have been signed, proclaimed, or with reference to which any other final ality has been executed, since that date; *** The United States Statutes Large shall be legal evidence of the laws, concurrent resolutions, treaties, national agreements other than treaties, proclamations by the President, proposed or ratified amendments to the Constitution of the United States ein contained, in all the courts of the United States, the several States, and Territories and insular possessions of the United States." (Italics supplied.) I. S. C. 30.) By Public Law 821, 81st Congress, approved September 23, 1950, that law was amended so as to provide for the publication of treaties and other international agreements separately from the Statutes at Large but with an equivalent legal effectiveness. That law reads as follows inter alia: ` "The Secretary of State shall cause to be compiled, edited, indexed, and published, beginning as of January 1, 1950, a compilation entitled 'United States Treaties and Other International Agreements,' which shall contain all treaties to which the United States is a party that have been proclaimed during each calendar year, and all international agreements other than treaties to which the United States is a party that have been signed, proclaimed, or with reference to which any other final formality has been executed, during each calendar year. The said United States Treaties and Other International Agreements shall be legal evidence of the treaties, international agreements other than treaties, and proclamations by the President of such treaties and agreements, therein contained, in all the courts of the United States, the several States, and the Territories and insular possessions of the United States" (1 U. S. C. 112a). (Italics supplied.] Pursuant to Public Law 821, treaties and other international agreements effected in 1950 and subsequent years will be published in annual volumes of Treaties and Other International Agreements. At the same time, the practice will continue of printing the authentic texts of agreements, in all the languages in which effected, in the official series issued by the Department of State, namely, Treaties and Other International Acts Series (referred to commonly as TIAS). The series consists of a separate leaflet or pamphlet print, separately numbered, of each agreement. Beginning with certain agreements made in 1945, the TIAS replaced the two series previously issued, namely, the Treaty Series and the Executive Agreement Series. The TIAS numbers began with 1501, the numbers in the TS and the EAS having reached an aggregate of 1500 (994 in the TS and 506 in the EAS). Publication of international agreements in the official series is routine and fairly expeditious. Complex editing and publication problems have from time to time delayed publication of such agreements in the volumes of the statutes. It should be pointed out also that article 102 of the Charter of the United Nations, to which the United States is a party (59 Stat. 1031; Treaty Series 993), provides as follows: "1. Every treaty and every international agreement entered into by any member of the United Nations after the present charter comes into force shall as soon as possible be registered with the Secretariat and published by it." The United States has made and continues to make a diligent effort to comply with that requirement. Following such registration, a treaty or other agree ment is published in the United Nations Treaty Series. It is believed that some factual material regarding the making of international agreements, in addition to the foregoing information with respect to their history and publication, may contribute to a clearer understanding of the situation. Treaties continue to be made in accordance with the treaty-making provision in the Constitution. International agreements continue to be made, in appropriate cases, in accordance with constitutional and legislative authority of the President in conducting the foreign relations of the United States. As already indicated, there is considerable misunderstanding as to the nature of so-called executive agreements. It may be well to point out, first of all, that the term "executive agreement" is a misnomer as applied to all "international agreements other than treaties." In its inception the terms was used merely as a succinct means of reference to agreements other than treaties. but it has acquired through misuse a popular connotation that has cast an unfortunate and unwarranted cloud over the making of such agreements. Actually, such agreements may be considered broadly in three categories: (1) Agreements or understandings entered into with foreign governments pursuant to or in accordance with specific direction or authorization by the Congress; (2) agreements or understandings made with foreign governments and sanctioned or implemented by congressional legislation; and (3) agreements or understandings made with foreign governments by the Executive under and in accordand with the Executive's constitutional power. It is readily demonstrated that categories (1) and (2), where the age ments or understandings are made pursuant to or within the contemplation and framework of existing law, or are sanctioned or implemented by legislative action, constitute the vast majority of international agreements other than aties. In a true sense, agreements in these two categories might well be ignated Legislative-Executive agreements to indicate more clearly that, for practical and legal purposes, both the legislative and executive branches of Government have shared in the making of the agreements. The Treaty Series, the Executive Agreement Series, and the Treaties and her International Acts Series afford a ready source of material for verifiable lysis. Publication of the EAS began in 1928, following the organization of a Paty Division in the Department of State. There was not, prior to that time. coordinated effort to publish all international agreements other than treaties so-called executive agreements. Some had been published theretofore in the aty Series, but apparently had not been considered essential to publish reguly all administrative arrangements made on a diplomatic level with foreign ernments. ■logical starting point, therefore, for the analysis of data, is the beginning the publication of the Executive Agreement Series, in which a few agreements ing back to 1922 were included. As indicated heretofore, the TIAS replaced 1 continued in a unified series the TS and EAS, so that all TIAS prints of ernational agreements other than treaties are included for the purpose of s analysis. As is always the case, there are now in process of publication in series a number of agreements. All agreements which have been assigned nbers in the TIAS up to the present time are included in the anlysis, in order t the most complete picture possible may be obtained. t may be well to mention also, in order that the figures below may be better reciated in relation to the over-all situation, that the addition of 1021 mbers in the TIAS representing international agreements other than treaties the 506 in the EAS shows a total of 1,527 such agreements in both series as the date of this memorandum. A comparison of this figure with the number treaties brought into force during the some period will be made hereinafter. Agreements made under legislative authority mong the best-known examples of agreements entered into and given effect suant to legislative direction or authority or, to the same effect, within the cise limitations and framework of legislation or treaty, are the reciprocal trade eements made under and in conformity with the Trade Agreements Act (or t act as amended), the lend-lease and lend-lease settlement agreements made er and in conformity with pertinent legislation, the economic and technical peration and rehabilitation agreements made under the laws enacted during ent years, advisory military and naval mission agreements made with Latin erican countries under and in conformity with pertinent legislation, and iw others. t is useful, for the purposes of the analysis below, to classify agreements › groups according to the legal authority upon which they rest. The number greements in each group, as shown by the official series (EAS and TIAS), idicated. icultural workers: Agreements with Mexico regarding temporary miation of Mexican workers into the United States to engage in agriculIral work___ 11 57 Sta. 70, 73; 58 Stat. 15; 59 Stat 645; 61 Stat. 55; 50 U. S. C. app. 1355 (g). iculture and food production: Cooperative programs for agriculture, to Greece and Turkey: Arrangements for tendering financial, material, nd technical assistance.. 61 Stat. 103, 610; 62 Stat. 157. erican dead: Agreements regarding disposition and care of remains of ceased persons who served in United States Armed Forces, interment nd removal of bodies; cemeteries, memorials, etc.. 50 U. S. C. app. 1811-1819; 60 Stat. 317; 36 U. S. C. 121, 123–132, 138138b; 61 Stat. 779. hropology: Cooperation in the conduct of anthropological research d investigation-- Act to authorize the President to render closer and more effective the relationship between American republics; 53 Stat. 1290; 22 U. S. C. 501-502. 49 3 10 |