mitment" of the charter. Thus, though in a technical legal sense the California Supreme Court holds the charter is not a self-executing treaty, the charter is allowed to produce the same effect by projecting itself into the thinking of the court in a new construction of the equalprotection clause of the 14th amendment to the Constitution of the United States to the extent that earlier statutes and decisions of years standing, even of the Supreme Court of the United States, are overruled by the Supreme Court of California upon the identical issue because of the influence of this international thinking.

The same judicial technique operated in the mixed-marriage case (Perez v. Lippold) where Judge Carter, also a member of the present California Supreme Court, after citing the general language of the Declaration of Independence and the 5th and 14th amendments to the Constitution of the United States, then devoted a paragraph to the Charter of the United Nations and concluded:

In the face of these authoritative pronouncements the matter of racial equality should be a settled issue.

Now, the same California Supreme Court, dealing with the California alien-land law, where the law had been settled for years upon the basis of both State and United States Supreme Court decisions, sees a new light and, with no other new beacon in the firmament to guide it to changing the settled law of many years except the United Nations Charter, the court after discussing the Charter concluded with the following observation:

The humane and enlightened objectives of the United Nations Charter are, of course, entitled to respectful consideration by the courts and legislatures of every member nation, since that document expresses the universal desire of thinking men for peace and for equality of rights and opportunities. The Charter represents a moral commitment of foremost importance, and we must not permit the spirit of our pledge to be compromised or disparaged in either our domestic or foreign affairs.

Who is the "we"? Obviously, the court, whose new interpretation of the equal-protection clause is directly influenced by the moral pledge in the United Nations Charter. How is the pledge to operate? It is to operate in our domestic as well as in our foreign affairs and the courts are to be so guided in their consideration of the law as to see to it that the pledge is executed. What more could be necessary for all practical purposes to make the Charter a self-executing instrument?

The final judicial result in the Fujii case makes it clearer than ever that the only way to protect the rights of the American people in their domestic affairs is to adopt a constitutional amendment which will indicate in language too clear to be misunderstood that no provision of a treaty is to be given any judicial consideration or effect unless it has been implemented by act of Congress, which in turn is enacted within the delegated powers of the Congress. Such a constitutional provision will put at rest the troublesome question of whether a treaty is self-executing or not, and put us on a par with the other nations. It is the settled law in Canada and England and most other important countries in the world that a treaty that has not been implemented by legislation cannot be a source of legal obligations affecting private rights. Lamont, Justice, stated this principle clearly in the Arrow River case (Canada, 1932, S. C. R. 495, at p. 510; 1945, 2 D. L. R. 250, at p. 260):

Tat the sanction of Parliament, the Crown cannot alter the existing law testering into a contract with a foreign power. *** Where, as here, a treaty - that certain rights or privileges are to be enjoyed by the subjectsthat is your alien matter—

contracting parties, these rights and privileges are, under our law, meble by the courts only where the treaty has been implemented or sancby legislation rendering it binding upon the subject.

Sator BRICKER. That was a question of State law, not of the

on.

V HOLMAN. That is right.

Wen the latest Fujii decision is reviewed from every angle and pages of the majority opinions read and reread, one cannot the conclusion that the United Nations Charter effected the row of the established law of a great State as the people of that e had determined it for themselves, and that this change of domesaw influenced by the provision of a treaty would not have occurred ere had been a constitutional amendment assuring the judges that was not the will of the American people that their local laws be merely by a treaty or the so-called moral commitments

thereof. If the so-called moral commitment and/or pledge in a charter which med to be non-self-executing can work this change in the estabd law, what about the socialistic if not communistic "moral coments" and "pledges" in the Declaration on Human Rights? Tat about the so-called moral commitments and pledges in the

t Covenant on Human Rights abridging our American concept. fredom of speech and of press and of religion, and even of "due *" including our right to trial by jury? The majority decision the Fujii case has opened up a Pandora's box of so-called moral tments and international pledges.

Another illustration of the effect of treaty law influencing court stos occurred on June 16, 1952, in the State of Idaho, where Judge ton Thatcher of the sixth circuit at Blackfoot ruled that the ted Nations Charter takes precedence over State law. He held it lf-executing. So, when an attorney undertook to ask the wife defendant in a boundary-line case if her husband was a citizen The United States at the time of marriage, to show that if he was . he could not own land under Idaho law, Judge Thatcher ruled the United Nations Charter supersedes the Idaho alien-land law. With the Senate as busy as it is with a great variety of matters, it ser quite certain when a treaty is approved what provisions the may hold self-executing and how some provision may later sely affect and change the constitutional rights of American ens It may be years before this is discovered, but when dis- an appropriate constitutional amendment could then be insed to protect and safeguard the citizens' rights. For example, -Warsaw Convention relating to international air transportation approved by the Senate some years ago when we were on friendly with Russia. It now transpires that this treaty deprives Amercitizens of their full and proper right to trial by jury. In the rint provisions of the Warsaw Convention there is a provision ing the tort liability of air carriers for personal injuries or death sengers in aircraft disasters to the sum not of American money

20572-53-10

but of 125,000 francs. The franc, of course, fluctuates from time time, but in no event does an American citizen or the widow an family of such citizen recover more than 125,000 francs, which at tl present time is equivalent to about $8.300 in American money, a ridic lously inadequate sum as the maximum of recovery in a death case du to negligence.

The opposition says that we have not been hurt. Senator Smi might come out to visit me in Seattle. I have invited him. I think 1 has been there once. And we could take transportation on a Unite Airline's plane which is going from Seattle to Vancouver, but I a going to get off at Bellingham. The plane might go down in Mou: Vernon. But he has an international ticket. That is on the same plan the same accident. His widow is limited to 125,000 francs when sl sues, but my widow can get something more. Maybe the jury migl think I was worth $9,500. That is what the Warsaw Convention is.

This Warsaw Convention, being a treaty, has been held to be th supreme law of the land and to override State law and policies (Garc v. Pan American Airways (1945), 55 N. Y. S. (2d) 317, affirmed 29 N. Y. 852, 67 N. E. (2d) 257; Lee v. Pan American Airways (1949 89 N. Y. S. (2d) 888, 300 N. Y. 761, 89 N. E. (2d) 258, certiorari denie 339 U.S. 920).

More serious than landownership or mixed marriages, or even tl right to a full jury trial in a damage action, is the situation we woul face under the "covenant" with respect to our right to freedom speech and freedom of press. Our wise forefathers knew that t mind and spirit of man could not be controlled and regimented b government or by the officers of government so long as freedom speech and of press were preserved. Accordingly, the first provisio of our Bill of Rights provided that

Congress shall make no law *** abridging freedom of speech or press

***

But under article 3 of the latest draft of the United Nations Co enant on Human Rights it is provided that "in time of public eme gency which threatens the life of the nation and the existence of whic is officially proclaimed"-that assumes a proposition in a way, b that is how Russia liquidates her citizens, because the life of the natio is threatened if somebody makes a speech or something which is co trary to the party line-and in such time of emergency a state ma take measures derogating from its obligations to preserve freedo of speech and of press and other freedoms which under our Bill Rights are not subject to suspension. In other words, the whole rigl to freedom of speech and of press may be suspended when such a “sta of emergency" is officially declared by the authorities in power. Wel we have lived in a state of officially declared emergencies frequentl during the last 20 years. If this Covenant on Human Rights is ratifie by our Senate, a President, by declaring a "state of emergency" a provided in the covenant, could close all the newspapers in the Unite States, or such of those and in such places as he may think it wise t close. This is not all.

There is another aspect to that that is important. Suppose we wer willing, in some kind of grandiose theory of achieving internationa peace and international cooperation, to sign that? Then, as Mr. Joh Hackett, president of the Canadian Bar, said to me, "Well, of cours we have the same constitutional provisions, but we don't want to sig

cause, if we sign it, then Mr. Peron down in Argentina can close ress: the Russians can, and we never can point the finger at them nyn." because we have entered into an engagement, which, as Mr. kett said, "will not affect our domestic law, but if we make such an cement then we never can criticize what is going on in these other tries where dictators are closing newspapers.'

Article 16 of the covenant provides that the exercise of the right to com of speech and of press is subject to certain restrictions as - provided by law and are necessary. Our Bill of Rights says "the

ress shall make no law," and this says they are "subject to certain strictions,” and these designations sound all right at first: "(1) for Stect of the rights or reputations of others"-that is, our libel and Sader--”(2) for the protection of national security or of public er or of public health or morals." At first glance these objectives ay seem appropriate, but the danger lies in what may be attempted a particular regime in passing restrictive laws on freedom of -ch and of press.

Our Bill of Rights provides that

Cores shall make no law respecting an establishment of religion, or probeting the free exercise thereof; or abridging the freedom of speech or of the ss, or the right of the people peaceably to assemble, and to petition the Govnt for a redress of grievances.

Under our American concept of freedom of speech and of press, the ly restriction that the law has imposed or can impose is where a artcular court believes that in a specific case there has been a flagrant ase of one of these freedoms. As one Justice of the Supreme Court ce said, "Free speech would not protect a man in falsely shouting "re in a theater where there was no fire and causing a panic; the gestion in each case is whether the words are used in such circumSarces and are of such a nature as to create a clear and present anger." and that is usually a jury question. In other words, except 5r certain common-law limitations as suggested in the "cry of fire" , our forefathers recognized that freedom of speech and of press ere so precious and so necessary to the continuation of our other doms under a free government that they specifically provided in the very first provision of the Bill of Rights that Congress should no law abridging freedom of speech or of press.

The words "national security, public order, public health or morals" stitute the whole gamut of human activities and human relationstips, so that under this language any administration in power with a ajority vote in the Congress could provide by law such restriction or abridgment of freedom of speech or of press as it asserted necessary. Now, we are told-and I think that will be brought out later by e of our opposition witnesses; we are told, however-that there Las been introduced into the Covenant on Human Rights a special Cause to remove all danger to the greater rights Americans enjoy nder their own laws. This clause is supposed to preserve such greater rights as may already exist under the laws of any contracting re. But the Federal Government is the contracting state-most of these rights are reserved to the states-whereas under the Amerian concept many of our rights are inherent in the people or in the everal States of the Union. It is not our concept that basic rights are inherent in or granted by the Federal Government, the contracting fate in these treaties.

Most of our basic rights arise through a restraint on the Federal Government forbidding it to legislate or pass any laws in abridgment of these rights. Many of our freedoms in this country lie in a concept entirely contrary to the whole authoritarian concept of the Covenant on Human Rights; so, any such special clause is merely more language in an international document that has now gone through so niany revisions, changes, and enlargements that it is a perfect Tower of Babel of words. The present draft of the Covenant on Human Rights contains about 13,000 words, whereas our American Bill of Rights contains only about 600 words.

Why should we overlay our inherent and precious rights and freedoms with a pattern of international rights drawn to suit the concepts of more than 60 nations with varying and antagonistic concepts? Even if these international documents, as to language and substance, were in exact accord with our own Bill of Rights and Constitution, nevertheless to acquiesce in the theory that the United Nations through treaties ratified by our Senate can fix and define our basic individual rights is in effect to agree that this same authority which we thus allow to confer these rights may later withdraw or limit them or condition them in such manner as a majority of the representatives of the other nations of the world may from time to time deem appropriate.

However, the outstanding and most alarming example of the effect of "treaty law" on our domestic law and on our own Constitution and upon the thinking of our judges is to be found in the opinion of the Chief Justice of the United States in the decision last year dealing with the President's seizure of private property in the Steel case. Lawyers had generally recognized that because of the peculiar provisions of article VI of our Constitution ratified treaties of the United States are the supreme law of the land-overriding State laws and constitutions and even existing laws of Congress. This of itself constitutes a dangerous threat to American rights which needs correction by an appropriate constitutional amendment. But the Chief Justice of the United States in his dissent in the Steel Seizure case advanced the doctrine that the United Nations Charter and other international treaties and commitments give the President of the United States authority to seize private property which authority is nowhere granted to him either by the Constitution or by the laws of the country.

The Chief Justice argued that when the charter was adopted this country thereby accepted "in full measure its responsibility in the world community" and an obligation "for the suppression of acts of aggression." Consequently, when the United Nations called upon its members "to render every assistance" to repel aggression in Korea the President was thereupon authorized to take every action to render that assistance. The Chief Justice stated:

Our treaties represent not merely legal obligations-

he calls them more than moral commitments which the California court does

but show congressional recognition that mutual security for the free world is the best security against the threat of aggression on a global scale.

In other words, acting under the charter and subsequent international commitments, the President has powers not granted to him by the Constitution but even denied to him by the Constitution. For,