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United Kingdom of Great Britain and Northern Ireland (Peaslee, III, 285–356).

See Great Britain and the British Commonwealth United States of America, Constitution of, September 17, 1787, effective June 21,

1788 (Peaslee, III, 362–368) Art. II, Sec. 2. The President shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur.

Art. III, Sec. 1. The judicial power shall extend to all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.

Art. VI. 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 State to the contrary notwithstanding. Uruguay, Constitution of, March 24, 1934, with amendments ratified November 29,

1942 (Peaslee, III, 388-432) The President concludes and signs treaties, subject to the approval of the General Assembly by an absolute majority of all the members of both Chambers. The Supreme Court of Justice exercises jurisdiction with respect to questions relating to treaties, pacts, and conventions with other states. Art. 75 (7), Art. 157 (21), Art. 212 (1). Venezuela, Constitution of, July 5, 1947 (Peaslee, III, 460-514)

Art. 198 (3) The attributes and duties of the President of the Republic are * * * to enter into treaties, contracts, and agreements with other nations.

(4) With the approval of the Permanent Commission of Congress and the Council of Ministers, to adhere to multilateral treaties which may interest the Republic, and to execute * * * those treaties in the discussion of which he has participated.

(5) To submit the international treaties, contracts, and agreements requiring it to the legislative chambers for approval; to ratify, exchange, settle, and put them into effect as circumstances require.

Art. 105. All international treaties, agreements, or accords which the executive power may celebrate must be approved by the National Congress in order to be valid, except those which deal with the execution or perfection of pre-existing obligations of the Republic, or with the application of principles expressly recognized by the Republic, or with the execution of ordinary acts concerning international relations or the exercise of faculties which the law expressly attributes to the executive power.

Nevertheless, the Permanent Commission of the National Congress may authorize the temporary execution of international treaties or accords whose urgency may require the same, which treaties or accords shall be submitted in all cases to the subsequent approval or rejection of the legislative cham rs. Yugoslavia, Constitution of, January 30, 1946 (Peaslee, III, 522–524)

Art. 44. Under the jurisdiction of the Federal Peoples' Republic are included : (4) international treaties.

Art. 74 (9). The Presidium of the People's Assembly ratifies international treaties.

Arts. 80-81. The Government (The President, Vice-Presidents, Ministers, and Chairmen of the Federal Planning and Control Commissions) directs the maintenance of relations with foreign states, and sees to the carrying out of international treaties and obligations.

Mr. Finch. Article VI of the United States Constitution was the first instance of any government declaring that treaties are to be the siipreme law of the land. With a few minor exceptions other governments have not followed the example. It is not a requirement of international law that treaties be enforceable as municipal law in the courts of the contracting parties. In 1858 Mr. Justice Curtis held: If the people of the United States were to repeal so much of their Constitution as makes treaties their municipal law, no foreign government with whom a treaty exists could justly complain, for it is not a matter with which he has any concern. I have the reference in my paper (Taylor v. Morton, 2 Curtis 454, affirmed by the Supreme Court in 2 Black 481).

The great majority of present-day constitutions distinguish between treaty stipulations of a national contractual nature and provisions affecting private rights and duties. Most of the nations follow the usage and custom of Great Britain, which has been clearly explained by a distinguished British legal authority, Dr. Arnold D. McNair, now President of the International Court of Justice at The Hague, as follows:

Many treaties have nothing to do with the law of the land and never come in question in any court of law. * * * Whenever a treaty, or anything done in pursuance of it, is likely to come into question in a court of law, the Crown inust 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.

I have quoted that from Dr. McNair's volume entitled “The Law of Treaties, British Practice and Opinion” (1939, pp. 7–8).

Whenever treaties of the nature of national contracts between gov. ernments are relied upon in litigation in domestic courts, the courts are bound to apply them as political acts of the Government over which the judiciary have no jurisdiction to interfere. Such was the interpretation that Alexander Hamilton placed upon the treaty supremacy clause in the Constitution:

The power of making treaties * * * relates neither to the execution of the subsisting laws, nor to the enaction of new ones. * * * Its objects are contracts with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign (The Federalist, No. 75).

Now, Mr. Alexander Hamilton wrote that to try to answer some of the criticisms to the Constitution and in order to try to defeat a Bill of Rights. This was Hamilton's reply to States rights critics of the original Constitution.

Mr. Finch. The Bill of Rights was adopted to allay their fears. It was thought that amendments added subsequent to article VI would control its interpretation. However, that has turned out not to be the fact and what these amendments which are now in consideration will in effect do will be to provide a Bill of Rights against the treatymaking powers. That is what we need.

The decision of the Supreme Court in Ware v. Hylton, rendered after the Bill of Rights was adopted, was focused on the contractual nature of the treaty of peace by which the United States had achieved its independence. "It emphasized the vital importance of compliance with the terms of the treaty by the United States lest Great Britain be given justification to repudiate them in whole or in part. It was unthinkable at that period of our history that the treaty supremacy clause could be invoked to transfer rights of the States to the Federal Gov. ernment, as was done by the language used by Mr. Justice Holmes in Missouri v. Holland.

Opponents of the proposal that a treaty shall become effective as internal law only through legislation by Congress, base their objection upon the assumption that treaties constitute an independent source of legislation in the United States. It is an assumption that should be deleted from our jurisprudence.. Aside from what has already been said concerning the effect of the adoption of the Bill of Rights upon the interpretation of article VI of the Constitution, the express language of the first section of the first article of the Constitution would seem to leave no residuum of legislative power anywhere after providing thatAll legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. If Congress is vested with all legislative powers, how can any fraction of legislative power remain in the treatymaking power?

The purpose of the American Bar Association amendment to make all treaties non-self-executing as internal law and thus require legislation to make them internally effective has already been explained by other members of the Committee on Peace and Law, when discussing the application of the United Nations Charter to the Fujii case in California (see statements of Mr. Holman and Mr. Schweppe).

The greatest opposition to the amendment is centered upon the second clause of the second sentence which would require that legislation to make treaties effective as internal law in the United States must be valid in the absence of treaty. It has been asserted, for instance, that If the implementing statute were required to fit within the delegated powers, in order to eliminate Missouri v. Holland, no treaty could thereafter be enacted to provide for reciprocal rights to inherit land, or for similar local matters, unless it depended on subsequent legislation in the 48 States (Prof. Arthur E. Sutherland, Jr., in Restricting the Treaty Power, Harvard Law Review, vol. 65, No. 8, June 1952, p. 1335). The learned author obviously wrote that statement without examining the State laws on the subject. Twenty-seven States—this would apply also to the same criticism that was made by Governor Stassen this morning when he was discussing the subject-grant the same rights of land ownership and inheritance as are possessed by citizens. Nine States grant similar rights provided the alien is eligible to citizenship. All restrictions on naturalization because of race were removed by the Immigration and Naturalization Act of June 27, 1952, section 311. Some had been previously removed by an act of 1916 (restrictions against Chinese, Filipinos, and races indigenous to India and North and South America had been removed by the act of July 2, 1946). Four States grant aliens real-property rights according to reciprocal rights granted American citizens. Eight States have limited restrictions according to the length of tenure, or the quantity or location of the real property (the foregoing information concerning State laws was obtained from the Digest of Laws in Martindale-Hubbell Law Directory, 1953, vol. III).

It has not been the policy of the Government in negotiating commercial treaties to override the laws of the States, as seemed to be assumed by everybody that appeared here. A Fact Sheet, published by the Department of State in March 1952, contains the following interesting statements in regard to the commercial-treaty program of the United States:

Consistently from the early days of our national independence, the provisions of American commercial treaties have reflected the primary aims of American policy. * * * Actually these treaties reinforce in terms of international obligation the position of the Federal Government as guardian of the rights of foreigners in this country. They thus reflect a domestic policy that has developed through the years in conformity with the Constitution and Federal law. They confer upon qualified aliens the privilege of indefinite sojourn for purposes of

foreign trade. They safeguard aliens, on a basis of reciprocity, against a number of legal restrictions to which aliens from nontreaty countries are or may become subject. Moreover, the States themselves on occasion voluntarily extend by law more favorable treatment to treaty aliens than is granted other foreigners, particularly in the matter of land ownership.

An example of the form of reciprocal treaty referred to is the Consular Convention with France of 1853, the interpretation of which was involved in the case of Geofroy v. Riggs (133 U. S. 258). Article VII reads in part:

In all the States of the Union, whose existing laws permit it, so long and to the same extent as the said laws shall remain in force, Frenchmen shall enjoy the right of possessing personal and real property by the same title and in the same manner as citizens of the United States. * * *

As to the States of the Union, by whose existing laws aliens are not permitted to hold real estate, the President engages to recommend to them the passage of such laws as may be necessary for the purpose of conferring this rightso we have in this treaty no such conflict between the State laws and commercial treaties as most of the witnesses for the Government seem to think exist.

Senator WATKINS. As a matter of fact, the United States scrupulously attempts to protect the State statutes.

Mr. Finch. They have tried to protect them as much as possible.

Senator WATKINS. But they never attempt to override them in the treaty.

Mr. Finch. In some cases that unfortunately has been the effect. It all depends upon the whim of the particular negotiators at the time.

Senator WATKINS. Pardon me for bringing this up now, but I have to leave. Somewhere in this paper do you discuss the extradition treaties?

Mr. FINCH. I will do it.

Senator WATKINS. I was wondering whether you were going to discuss that.

Mr. Finch. I can tell you now I put in the hearings of last year a historical statement regarding the development of extradition treaties. There is nothing in our law of extradition to support the critics that this amendment will have any effect whatever upon our ability to negotiate and fulfill extradition treaties.

First of all, in the United States it depends upon either treaty or legislation in the alternative.

Senator WATKINS. You mean between States?

Mr. FINCH. I mean international extradition. I might say here that in the beginning of our Government the States themselves undertook to extradite. New York State had a law on the subject author

a izing its Governor to extradite to surrounding States. When Mr. Seward became Governor of New York, he refused to carry out that law. He said he thought extradition ought to be handled by the Federal Government, and a few years later when the Governor of Vermont attempted to extradite a fugitive to Canada, the fugitive took the case to the Supreme Court, and the Supreme Court then held in Holmes V. Jennison that the matter of extradition was a subject for the Federal Government.

Senator WATKINS. That is the international extradition?

Mr. FINCH. Yes. We have had on our statute books for over a century a law governing the matter of international extradition, and that law was made not only in contemplation of two extradition treaties that they then had negotiated, but of all future extradition treaties. I gave a reference to that history in the testimony I gave last year. I will give it again here. Senator WATKINS. I think it would be

very well if you would. Mr. Finch. I intend to bring that up later on. Governor Stassen, members of the Department of Justice, and other legal advisers simply have not looked up the law of extradition of the United States.

Last year the President submitted to the Senate a series of revised treaties of friendship, commerce, and navigation. Their provisions were explained to a subcommittee of the Senate Committee on Foreign Relations by a representative of the State Department, who said:

In undertaking treaty commitments that would formally confirm to foreigners a substantial body of rights in the United States, the Department of State has exercised great care to frame provisions that would be in conformity with Federal law

Furthermore, where the subject matter covers fields in which the States have a paramount interest, such as the formation and regulation of corporations and the ownership of property, the treaty provisions have been worked out with the same careful regard for the States' prerogatives and policies that has traditionally characterized agreements of this type. (Department of State Bulletin, vol. XXVI, No. 675, June 2, 1952, pp. 881-883.)

In the face of this official assurance, what becomes of the great hullabaloo that if the constitutional amendment proposed by the American Bar Association is adopted it would deprive Congress of the power to pass legislation putting the commercial treaties into effect in the absence of treaty ?

A modern treaty of friendship, commerce, and navigation, formulated on the basis of internal State reciprocal terms, is that signed with China on November 4, 1946, which went into effect on November 30, 1948. Article VIII reads, in part, as follows:

The nationals, corporations, and associations of either high contracting party shall be permitted to acquire, hold, and dispose of real and other immovable property throughout the territories of the other contracting party subject to the conditions and requirements as prescribed by the laws and regulations of such other high contracting party ***. In the case of any State, Territory, or possession of the United States of America which does not now or does not hereafter permit the nationals, corporations, and associations of the Republic of China to acquire, hold, or dispose of real and other immovable property upon the same terms as nationals, corporations, and associations of the United States of America, the provisions of the preceding sentence shall not apply. In that case, the Republic of China shall not be obligated to accord to nationals of the United States domiciled in, and to corporations and associations of the United States of America created or organized under the laws of, such State, Territory, or possession treatment more favorable than the treatment which is or may hereafter be accorded within such State, Territory, or possession to nationais, corporations, and associations of the Republic of China.

Here is an example of what I refer to as a commercial treaty on a reciprocal internal State basis. In other words. Senator, if your State of Utah does not want to grant to foreigners certain rights in Utah, to Chinese out there, for example, then the citizens of Utah will not have the same rights in China, but the citizens of California, or New York, or any other State willing to agree to that reciprocal treaty have a right to do so.

Senator WATKINS. It has not been difficult to administer?
Mr. FINCH. It has not been difficult at all.

Any restrictions on alien land ownership or tenure remaining in the few States of the American Union, could be taken care of by

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