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aterpret or enforce world law,' or to confer those powers 'necessary to the estabsment and the maintenance of world law and order' or those 'powers which, e defined and limited, shall be adequate to preserve peace,' would transfer sejart of the legislative, executive, or judicial powers of the National Govement to the world government and would be impliedly contrary to these conentional provisions."

Iwever, this suggested limitation has been put under attack and may not at exist.

Mr. Moses Moskowitz in the American Bar Association Journal for April 1949, raze 359, in speaking of the draft covenant on human rights, stated:

Ne should the terming of the project as 'revolutionary' cause deep concern. Teidea of 'supranational supervision' of the relationship of a State to its own peas, which is the real crux of the matter, revolutionary as it may appear, ant without precedent: witness the activities of the defunct League of Nain the field of general protection of minorities within the framework of a treaties concluded at the end of World War I; of the Upper Silesian rites protection under the Geneva Convention of 1922, and of the superviof the administration of mandated areas-all exercised by the League nel with by no means entirely unsatisfactory results."

aking of what is essentially within the domestic jurisdiction of any e. he says: Now, as to the argument that relations between governments and their citi ́s a matter which is excluded from the intervention of the United Nations, sof a purely legalistic character and excludes all considerations of political

In the first place, the Charter does not define what matters are 'esseny within the domestic jurisdiction of any state,' It is a matter of interMation. Perhaps, the correct position would be that once a matter has become, - way or another, the subject of regulation by the United Nations, be it by ~. ton of the General Assembly or by convention between member states instance of the United Nations, that subject ceases to be a matter being ally within the domestic jurisdiction of the member states.' As a matter cut, such a position represents the official view of the United Nations, as well ? Ee member states that have voted in favor of the Universal Declaration Human Rights. Hence, neither the Declaration, nor the projected Covenant, **any agreement that may be reached in the future on the machinery of impleetation of human rights, can in any way be considered as violative of the spirit of article 2 of the Charter" (p. 285).

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A. at page 286:

ito case can it be truly said that the projected Covenant is an attempt * Tuach upon the sovereign independence of member states. For it is the e of sovereignty that it can be limited, and even completely abrogated, by ∙nal agreements freely entered into by members of the international y. This essentially is what international treaties add up to."

* ri possibility of limitation on the treaty power

En Charles Evans Hughes said 23 years ago:

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there is, however, a new line of activity which has not been very notice this country, but which may be in the future, and this may give rise to - questions as to the extent of the treaty-making power. I have been carewhat I have said to refer to the external concerns of the Nation. I 114 tot care to voice any opinion as to an implied limitation on the treatyz power. The Supreme Court has expressed a doubt whether there could ▸y such. That is, the doubt has been expressed in one of its opinions. there is a limitation to be implied, I should say it might be found in the of the treaty-making power.

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Ime back to the suggestion I made at the start, that this is a sovereign from my point of view the Nation has the power to make any agreewhatever in a constitutional manner that relates to the conduct of our nai relations, unless there can be found some express prohibition in estitution, and I am not aware of any which would in any way detract power as I have defined it in connection with our relations with other mets (pp. 195-196). But if we attempted to use the treaty-making power with matters which did not pertain to our external relations but to otters which normally and appropriately were within the local jurisof the States, then I again say there might be ground for implying on upon the treaty-making power that it is intended for the purpose

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same footing as most other nations at the council table and would so strengthen its hand in negotiating with them.

Third, it would remove any doubt as to whether a treaty was self-executing or non-self-executing, and therefore as to what the law of the land was at a particular time.

The memorandum of the Department of Justice objects particularly to this phase of the amendment suggested by the American Bar Association-that trea ties could no longer be self-executing as domestic law but would require congressional action to give them that effect.

It is asserted:

"Whether a treaty is thus self-executing is not ‘a matter of judicial guess' (A. B. A. committee report, p. 14); it is a matter primarily of construction of the treaty, which is no more difficult or obscure than any other question of construction of a written document." 25

Whether or not this observation is legalistically accurate, the fact remains that probably the most far-reaching treaty ever signed by the United States-the United Nations Charter-contains two most significant articles 26 as to which controversy has continued for years as to whether or not they are self-executing. And we still do not know the answer authoritatively.

Judge Manley Hudson in 1950 maintained that they were not."

Prof. Quincy Wright followed with an article maintaining that they were, at least insofar as they were involved in the Fujii case-California's alien land law case.28

The Supreme Court of California holds that they are not.29

31

The District Court of Appeals in California had held that they were.0 Presumably one day the question may be passed on by the Supreme Court of the United States which has constitutional jurisdiction of cases arising under treaties and which Court alone can definitively settle the controversy. But, meantime, the question of whether these articles are or are not self-executing has been under debate for years. Seven years after the treaty was ratified we do not Iknow.

It is submitted that the people and the courts are entitled to know, with a greater degree of certainty than that and in a far shorter period of time, whether this or that treaty provision is or is not internal law.

Certainly there can be no legitimate objection to the American Bar Association's proposal on the ground that it would furnish a categorical answer, which would be immediately understood, to that question.

3. The second sentence of the proposed amendment of the American Bar Association reads:

"A treaty shall become effective as internal law in the United States only through legislation by Congress which it could enact under its delegated powers in the absence of such treaty."

The second phrase of this sentence would limit the Congress, in legislating in matters pertaining to domestic law in implementation of a treaty, to its delegated legislative powers in the absence of the treaty being implemented.

This would definitely do away with the doctrine enunciated in Missouri v. Holland-that given a proper treaty any law in implementation of it is properly

25 D. of J. M., p. 30.

26 Articles 55 and 56 reading:

"Article 55

"With a view to the creation of conditions of stability and well-being which are neces sary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: "a. higher standards of living, full employment, and conditions of economic and social progress and development:

"b. soluti ns of international economic, social, health, and related problems; and international cultural and educational cooperation; and

"c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

"Article 56

"All Members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55."

27 Charter Provisions on Human Rights in American Law, 44 American Journal of International Law 543.

28 45 American Journal of International Law 62.

29 Fujii v. California, 242 P. 2d 617.

30 Fujii v. California, 217 P. 2d 481; 218 Pac. 2d 595.

31 Article III, sec. 2.

in the Congressional competence, that from the very making of the treaty legislative power may be conferred upon Congress under the necessary 4 proper" clause, however unrelated to any other specifically delegated The Department of Justice, at page 29, states that the Department of State's == rantum submitted to the subcommittee pointed out that "there does not Lear to be any other jurisdiction in which two stages are required for a treaty me effective."

Apparently the reference of the Department of Justice is not to page 11 of De statement of Hon. David K. Bruce, Acting Secretary of State, before this mecomitee, where we find:

"I am aware that it has been argued that the United States is alone in having institutional system under which treaties can become automatically the

me law of the land. This statement appears to me to be quite misleading. Iwad like to submit for the record an analysis of the constitutional provi ́s of other countries dealing with this subject. This survey shows that Eve in most countries participation by the legislature is required to apply a treaty which conflicts with existing laws, this action is almost universally torn as part of the same action by which the treaty is ratified. This is geny by simple majority. The more important of these countries have paretary systems under which only a majority vote in the lower house is ficant." [Italics added.]

The analysis by the Department of State has not been examined, but the tere quotation would seem to support the position of the American Bar Asso20on that in most countries, certainly where a treaty affects the domestic 2*egislative action is a prerequisite to its effectiveness.33 Of course, the Azervan Bar Association amendment would not require two steps in any Day which did not attempt to affect our domestic law. Apparently the objection is based on time sequence. Perhaps the objection c disappear if congressional action could be obtained before the proclamaof the treaty. Or perhaps the objection would disappear (although that is donbted) if the Constitution should be amended to provide that no treaty 1 have effect as domestic law within the United States unless its provisions z domestic effect were such as could be enacted by Congress within its ented powers in the absence of such treaty. That would obviate the two-step 4ton but would leave completely unsolved the problem of when a treaty <if-executing or not self-executing-a consideration which, it is submitted, Lerits the two-step mechanism.

T

That the two-step objection is really not an objection of merit is shown by Denartment's defense of executive agreements, where it says (p. 37):

It is evident from an examination of the various subjects that most of the e-stive agreements have been and are in fact congressional-executive agree

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Department of Justice's Memorandum advances the proposition regarding MisHiland, that today the regulation of migratory birds would probably be sustained the commerce power (footnote 35, p. 27). It would come, no doubt, as a great Canadian goose which flew from Manitoba into Minnesota, or a fish which swam and course in the St. Lawrence River between Ontario and New York, or a doe andered across the New York-New Jersey line to learn that they were in inter*el of interstate commerce. The theory upon which the commerce clause could be 1 rot suggested. As to the courts sustaining it on "other Federal powers" as is it is not clear what these might be although it is fairly apparent that they be inherent powers, since ours is a government of delegated powers. Sheet & Tube Company v. Sawyer, supra. or Chafee says of this contention: "This proposed amendment would have caused to go the other way, unless the Supreme Court had strained itself to make flying sterstate and foreign commerce, or owned by the Nation like radio bands" (XII Law Review, at p. 360). [Italics added.]

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provides that treaties of commerce, or which burden the state, "or bind individually, shall take effect only after having received the approval of the two requires Congress in joint session to "approve or reject international treaties and s of all kinds."

Te the National Congress exclusive power to give final decision respecting -1 conventions celebrated with foreign states by the President. aves Parliament the power to enter into and implement treaties and agreements countries, and specifically provides: "No international agreement as such shall the municipal law of the Union, save as may be determined by the Parliament." rides that "The President shall conclude and sign treaties. Before their they must be presented to the approval of Congress."

a's provisions are to the same effect as Chile's.

to refer to other constitutions. Their provisions are set forth at pages of the report of the Committee on Peace and Law Through United Nations of cer 1, 1950, which is before the subcommittee.

ments based upon the cooperation of the President and the Congress and the merger of their powers. A comparatively small number of the total agreements has rested upon the sole action of the President."

That the Federal Government finds a two-step system actually preferable to a one-step system where it can be utilized to expand the scope of executive agree ments at the expense of treaties is strongly indicated by the thesis of Mr. Wallace McClure (formerly of the State Department) in his book entitled "International Executive Agreements" where he states at page 378:

"The result is that for controversial international acts the Senate method may well be quietly abandoned, and the instruments handled as executive agreements. But for large numbers of purely routine acts, about which no public opinion exists and no question as to their acceptability arises, the present method is desirable as saving the time of the House of Representatives without increasing the present burdens of the Senate."

The Department of Justice, on pages 27 and 28, objects that treaties relating to the rights of aliens to own land and personalty, to inherit property, and to transfer property by will or intestate succession; to engage in trade or business having no interstate character, and treaties of extradition-where the crime was a purely domestic one-within the foreign state would probably be "invalid" under the suggested amendment.

By "invalid" the Department means, no doubt, the President and two-thirds of the Senate present could not conclude such treaties and make them effective within the various States without State legislation.

Mr. Finch in his article" deals at length with the history of extradition ; points out that "At international law treaties are not required. Extradition is founded on reciprocity"; that the first Federal extradition statute was adopted in 1848; that in view of the history of the subject "it would be overemphasizing the importance of treaty-making in American constitutional law to hold that Congress would not have the power to enact legislation making extradition treaties internal law under the proposed constitutional amendment"; and that John Bassett Moore has written that general opinion, followed in practice, has been "that in the absence of a conventional or legislative provision, there is no authority vested in any department of the Government to seize a criminal fugitive and surrender him to a foreign power." [Emphasis added.]

In the same article (p. 470) Mr. Finch considers also the matter of treaties of friendship, commerce, and navigation in the light of the commerce clause, and concludes that Federal power under that clause would undoubtedly be as liberally interpreted in the matter of treaties as in connection with our internal matters, where its scope has been greatly expanded.

This, together with the delegated powers to establish an uniform rule of naturalization, to declare war, to define and punish offenses against the law of nations, to raise and support armies, to provide and maintain a navy, to make rules for the government and regulation of the land and naval forces, and to make all laws necessary and proper for carrying into execution these and its other delegated powers, leaves a vast field, and certainly the external field, solely within the Federal province. That external field would not be affected by the proposed amendment.

But where a treaty sought to deal with the ownership or devolution of real property in a State, with the engaging in a purely local activity, or with any matter not within the delegated powers of Congress in the absence of a treaty, then, and only then, would the treaty power of the Federal Government be circumscribed. Then the treaty mechanism could not be used for amplifying the powers of the Federal Government to legislate for the internal affairs of the country.

As is so clearly pointed out by Mr. Finch, the amendment suggested by the American Bar Association would not prevent treaties being made on these subjects. Treaties could be drafted on a reciprocal internal state basis, which is "the regular procedure in Great Britain, which does not undertake to enforce treaties affecting the laws of the dominions, colonies, possessions, or protectorates without their consent."

35

Mr. Finch gives typical phraseology in this regard from the draft convention relating to civil procedure prepared by the committee appointed by the Lord Chancellor in 1919, which stipulated that the convention should not apply to any dominion, colony, or protectorate of the parties, but gave either contracting party

The Treaty Clause Amendment-the Case for the Association, supra, p. 528.
Finch, p. 529.

This pronouncement was made in 1950, only 5 years after the State Department participated at San Francisco in 1945 in framing article 2, section 7 of the Charter. In footnote 33, at page 26, of the Department of Justice memorandum, it Sailarly the provisions of the Convention on Human Rights relating to and political rights and those of the Convention on Freedom of Informan would, insofar as they affect State activities, seem to come within the * of Congress to enforce by legislation, the provisions of the fourteenth dment;

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Even if it be assumed that all of the civil and political rights referred to in the Covenant on Human Rights and in the Convention on Freedom of Informaare protected against invasion by the States under the fourteenth amend- this proposition of the Department of Justice overlooks the basic fact 21: entering into such multilateral treaties would, under the doctrine of Miswari v. Holland, lay a broad base for direct plenary Federal legislation conring those rights, whereas, with respect to the fourteenth amendment, the Szreme Court has said: "9

* the principles of interpretation which we have laid down are correct, as deem them to be (and they are in accord with the principles laid down in Le cases before referred to, as well as in the recent case of United States v. karma (106 U. S. 629)), it is clear that the law in question cannot be sustained any grant of legislative power made to Congress by the fourteenth amendThat amendment prohibits the States from denying to any person the equal #tection of the laws, and declares that Congress shall have power to enforce, appropriate legislation, the provisions of the amendment. The law in queswithout any reference to adverse State legislation on the subject, declares all persons shall be entitled to equal accommodations and privileges of 28, public conveyances, and places of public amusement, and imposes a penalty any individual who shall deny to any citizen such equal accommodations Di privileges. This is not corrective legislation; it is primary and direct; it 2 immediate and absolute possession of the subject of the right of admission Es, peblic conveyances, and places of amusement. It supersedes and disState legislation on the same subject, or only allows it permissive force. Tores such legislation, and assumes that the matter is one that belongs to domain of national regulation. Whether it would not have been a more Eve protection of the rights of citizens to have clothed Congress with plenary er over the whole subject is not now the question. What we have to decide **ether such plenary power has been conferred upon Congress by the fourDen amendment; and, in our judgment, it has not."

40

The Draft Covenant on Economic, Social, and Cultural Rights (one of the draft covenants into which the much talked of Covenant on Human Rights 22s wen divided) contains as the first paragraph of article 1 the following: 1 Each state party hereto undertakes to take steps, individually and through ational cooperation, to the maximum of its available resources, with a ➡ to achieving progressively the full realization of the rights recognized in venant by legislative as well as by other means."

a single economic, social, or cultural right recognized in the covenant. fe, but that would be the subject of Federal legislation for everyone in the Ted States. These include: the right to work as defined (art. 5); the right 1st and favorable conditions of work (art. 6); the right to form and join 2. rational, and international trade-unions (art. 7); the right of everyone to **curity (art. 8); adequate food, housing, and clothing (art. 10); an adeFure standard of living and the continuous improvement of living conditions 11: the right to the enjoyment of the highest standards of health (health 2 complete physical, mental, and social well-being, and not merely the abof disease or infirmity") (art. 12): education (art. 13). The need for protection to motherhood and children and the widest possible protection be family is "recognized" by the states parties to the covenant (art. 9).“ Ace 3, the substance of which was originally urged by the United States a. reads as follows:

Rights cases, 109 U. S. 3.

Nations Bulletin. September 1, 1952. p. 253.

text of the draft covenant should be consulted for the precise wording of the there recognized. They are couched in extremely broad, not to say vague or

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*** Department Bulletin, June 25, 1951, p. 1004.

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