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I'erpret or enforce world law,' or to confer those powers 'necessary to the estabmot and the maintenance of world law and order or those 'powers which,
. defined and limited, shall be adequate to preserve peace,' would transfer *_art of the legislative, executive, or judicial powers of the National Gov
est to the world government and would be impliedly contrary to these conntcal provisions."
ever, this suggested limitation has been put under attack and may not intelist.
a: Moss Moskowitz in the American Bar Association Journal for April 1949, **"1* 279, in speaking of the draft covenant on human rights, stated :
Nowhould the terming of the project as 'revolutionary' cause deep concern. - dea of 'supranational supervision of the relationship of a State to its own "Bas, which is the real crux of the matter, revolutionary as it may appear, .: Wibont precedent: witness the activities of the defunct League of Nain the field of general protection of minorities within the framework of
treaties concluded at the end of World War I; of the Upper Silesian EU protection under the Geneva Convention of 1922, and of the supervi
of te administration of mandated areas-all exercised by the League C! with by no means entirely unsatisfactory results.”
quaking of what is essentially within the domestic jurisdiction of any e. be says:
was to the argument that relations between governments and their citi"* * a matter which is excluded from the intervention of the United Nations, Hajureiy legalistic character and excludes all considerations of political
Tin the first place, the Charter does not define what matters are 'esseny within the domestic jurisdiction of any state,' It is a matter of inter***in. Perhaps, the correct position would be that once a matter has become,
15 or another, the subject of regulation by the United Nations, be it by to of the General Assembly or by convention between member states
istance of the United Nations, that subject ceases to be a matter being pily within the domestic jurisdiction of the member states.' As a matter
?. n«h a position represents the official view of the United Nations, as well **Er beinber states that have voted in favor of the Universal Declaration :3.mn Rights. Hence, neither the Declaration, nor the projected Covenant, **85 azrement that may be reached in the future on the machinery of imple. *s of human rights, can in any way be considered as violative of the
spirit of article 2 of the Charter” (p. 285). 4..at page 286:
ene can it be truly said that the projected Covenant is an attempt This h upon the sovereign independence of member states. For it is the of wirereignty that it can be limited, and even completely abrogated, by
nal acreements freely entered into by members of the international
'y. This essentially is what international treaties add up to." i musibility of limitation on the treaty power EL Charles Evans Hughes said 23 years ago : 5b-re is, however, a new line of activity which has not been very notice
s country, but which may be in the future, and this may give rise to 12 ans as to the extent of the treaty-making power. I have been care
Et I have said to refer to the external concerns of the Nation. I :94" care to voice any opinion as to an implied limitation on the treaty. :25er. The Supreme Court has expressed a doubt whether there could
3 ***h. That is, the doubt has been expressed in one of its opinions, ere is a limitation to be implied, I should say it might be found in the of the treaty-making power.
Ime back to the suggestion I made at the start, that this is a sovereign
on my point of view the Nation has the power to make any agree. hapter in a constitutional manner that relates to the conduct of our
nal relations, unless there can be found some express prohibition in **tution, and I am not aware of any which would in any way detract
pwer as I have defined it in connection with our relations with other *** (pp. 195–196). But if we attempted to use the treaty-makini power with matters which did not pertain to our external relations but to **ters which normally and appropriately were within the local juris.
States, then I again say there might be ground for implying Dupon the treaty-making power that it is intended for the purpose
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 con. I order struction of a written document." 25
Whether or not this observation is legalistically accurate, the fact remains that to the probably the most far-reaching treaty ever signed by the United States—the deli United Nations Charter-contains two most significant articles as to which controversy has continued for years as to whether or not they are self-executing.ch And we still do not know the answer authoritatively.
Judge Manley Hudson in 1950 maintained that they were not.27
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.
The Supreme Court of California holds that they are not.28
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 *1 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 know.
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 hare b in matters pertaining to don stic 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.
“Article 55 “With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nati ns 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 f rth 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.
2 the Congressional competence, that from the very making of the treaty 15 lgislative power may be conferred upon Congress under the necessary 1. pauper" clause, however unrelated to any other specifically delegated
Department of Justice, at page 29, states that the Department of State's Krau submitted to the subcommittee pointed out that "there does not Leur to be any other jurisdiction in which two stages are required for a treaty : jone ne ffective."
45nis the reference of the Department of Justice is not to page 11 of * tatement of Hon. David K. Bruce, Acting Secretary of State, before this 5.mittee, where we find :
"I am aware that it has been argued that the United States is alone in having Istitutional system under which treaties can become automatically the Enne law of the land. This statement appears to me to be quite misleading. I Tai like to submit for the record an analysis of the constitutional provi
of other countries dealing with this subject. This survey shows that
in most countries participation by the legislature is required to apply my which conflicts with existing laws, this action is almost universally s'* ©* part of the same aotion by which the treaty is ratified. This is gen
by simple majority. The more important of these countries have parstary systems under which only a majority vote in the lower house is
Scant." (Italics added.] Ze atalysis by the Department of State has not been examined, but the Evit qoration would seem to support the position of the American Bar Asso
is that in most countries, certainly where a treaty affects the domestic 27 poslative action is a prerequisite to its effectiveness.us Of course, the mran Bar Association amendment would not require two steps in any
which did not attempt to affect our domestic law. A Tarently the objection is based on time sequence. Perhaps the objection 7. disappear if congressional action could be obtained before the proclama
the treaty. Or perhaps the objection would disappear (although that isobted) if the Constitution should be amended to provide that no treaty 1 bare effect as domestic law within the United States unless its provisions *3 bestic effect were such as could be enacted by Congress within its -21 pwers in the absence of such treaty. That would obviate the two-step
og but would leave completely unsolved the problem of when a treaty Wiwerputing or not self-executing-a consideration which, it is submitted, 1- Derits the two-step mechanism. 2. tbe two-step objection is really not an objection of merit is shown by
partment's defense of executive agreements, where it says (p. 37): ***s evident from an examination of the various subjects that most of the -the agreements have been and are in fact congressional-executive agree
Dartment of Justice's Memorandum advances the proposition regarding Mismind, that today the regulation of migratory birds would probably be sustained be , merce power (footnote 35, p. 27). It would come, no doubt, as a great
Cursdian goose which flew from Manitoba into Minnesota, or a fish which swam
More in the St. Lawrence River between Ontario and New York, or a doe mod across the New York-New Jersey line to learn that they were in inter- irretate commerce. The theory upon which the commerce clause could be and
Guit susgested. 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. hort & Tube Company v. Sawyer, supra.
T Chafee says of this contention : "This proposed amendment would have caused “ In co the other way, unless the Supreme Court had strained itself to make flying
irritate and foreign commerce, or owned by the Nation like radio bands" (XII •, LA Review, at p. 360). (Italics added.) = 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 - oires Congress in joint session to "approve or reject international treaties and
cf all kinds."
te the National Congress exclusive power to give final decision respecting *prentions celebrated with foreign states by the President. no Parliament the power to enter into and implement treaties and agreements
ecoptries, 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 che must be presented to the approval of Congress." orovisions are to the same effect as Chile's.
to refer to other constitutions. Their provisions are set forth at pages ** the report of the Committee on Peace and Law Through United Nations of
ri, 1950, which is before the subcommittee.
TREATIES AND EXECUTIVE AGREEMENTS ments based upon the cooperation of the President and the Congress and the serene merger of their powers. A comparatively small number of the total agreements has rested upon the sole action of the President."
-5, regiri 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 phers 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 “Interna- quid tional Executive Agreements” where he states at page 378:
“The result is that for controversial international acts the Senate method : adu may well be quietly abandoned, and the instruments handled as executive agree. 2000 ments. But for large numbers of purely routine acts, about which no public pont opinion exists and no question as to their acceptability arises, the present method 34 rast is desirable as saving the time of the House of Representatives without increasing-eurs fr the present burdens of the Senate.”
The Department of Justice, on pages 27 and 28, objects that treaties relating tries, ti to the rights of aliens to own land and personalty, to inherit property, and took of a transfer property by will or intestate succession; to engage in trade or business 2017'DAI having no interstate character, and treaties of extradition—where the crime deration was a purely domestic one-within the foreign state would probably be “in- in the De valid" under the suggested amendment.
By "invalid” the Department means, no doubt, the President and two-thirds beter box of the Senate present could not conclude such treaties and make them effective prates within the various States without State legislation.
went P Mr. Finch in his article deals at length with the history of extradition ; was that m points out that “At international law treaties are not required. Extradition is to be reis founded on reciprocity"; that the first Federal extradition statute was adopted skire az in 1848 ; that in view of the history of the subject "it would be overemphasizing the difere the importance of treaty-making in American constitutional law to hold that fur les Congress would not have the power to enact legislation making extradition wy mas ha treaties internal law under the proposed constitutional amendment”; and that John Bassett Moore has written that general opinion, followed in practice, has thing the been “that in the absence of a conventional or legislative provision, there is no sites stan authority vested in any department of the Government to seize a criminal fugi- . that tive 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 Ferleral 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 À 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 sub- steprob jects. 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." 38
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
by the Send the
* The Treaty Clause Amendment-the Case for the Association, supra, p. 528. # Finch, p. 620.
s pronouncement was made in 1950, only 5 years after the State Department tripated at San Francisco in 1945 in framing article 2, section 7 of the Charter. 1: outpote 33, at page 26, of the Department of Justice memorandum, it 式地“: Szilarly the provisions of the Convention on Human Rights relating to
and political rights and those of the Convention on Freedom of InforI wonid, insofar as they affect State activities, seem to come within the >75of Congress to enforce by legislation, the provisions of the fourteenth D-rent; ivna if it be assumed that all of the civil and political rights referred to in e torenant on Human Rights and in the Convention on Freedom of Informa
o are protected against invasion by the States under the fourteenth amend. Et this proposition of the Department of Justice overlooks the basic fact *: eniering into such multilateral treaties would, under the doctrine of Mis*497 v. Holland, lay a broad base for direct plenary Federal legislation conSering those rights, whereas, with respect to the fourteenth amendment, the Core Court has said : 39
*I' tbe principles of interpretation which we have laid down are correct, as en demn them to be (and they are in accord with the principles laid down in ease before referred to, as well as in the recent case of United States v. kou 106 U. S. 629)), it is clear that the law in question cannot be sustained * 125 grant of legislative power made to Congress by the fourteenth amend
*Ibat amendment prohibits the States from denying to any person the equal Tatian of the laws, and declares that Congress shall have power to enforce, nappropriate legislation, the provisions of the amendment. The law in ques
Titbout any reference to adverse State legislation on the subject, declares **: ait persons shall be entitled to equal accommodations and privileges of
Iublic conveyances, and places of public amusement, and imposes a penalty Poly individual who shall deny to any citizen such equal accommodations o perilezes. This is not corrective legislation; it is primary and direct; it 21 inmediate and absolute possession of the subject of the right of admission
Is, priblic conveyances, and places of amusement. It supersedes and disa state legislation on the same subject, or only allows it permissive force. ? I such legislation, and assumes that the matter is one that belongs to
Lain of national regulation. Whether it would not have been a more *mbie protection of the rights of citizens to have clothed Congress with plenary
oser the whole subject is not now the question. What we have to decide beber such plenary power has been conferred upon Congress by the four
zendment; and, in our judgment, it has not." ize Draft Covenant on Economic, Social, and Cultural Rights (one of the
cart covenants into which the much talked of Covenant on Human Rights ***o divided) contains as the first paragraph of article 1 the following: 1. Earb state party hereto undertakes to take steps, individually and through
inal cooperation, to the maximum of its available resources, with a
o achieving progressively the full realization of the rights recognized in *25 senant by legislative as well as by other means.” * a single economic, social, or cultural right recognized in the covenant.
on but that would be the subject of Federal legislation for everyone in the ng States. These include: the right to work as defined (art. 5); the right
*** and favorable conditions of work (art. 6); the right to form and join 183. *Topal, and international trade-unions (art. 7); the right of everyone to ** 1. urity (art. 8); adequate food, housing, and clothing (art. 10); an ade
man lard of living and the continuous improvement of living conditions
11: the right to the enjoyment of the highest standards of health (health 2 *mpriete physical, mental, and social well-being, and not merely the ab
of disease or infirmity") (art. 12): education (art. 13). The need for totection to motherhood and children and the widest possible protection
fasily is “recognized" by the states parties to the covenant (art. 9)." 1-::3, the substance of which was originally urged by the United States ! La,reads as follows:
Right cases, 109 V. S. 3. * po lations Bulletin. September 1, 1952. p. 253. ***t of the draft covenant should be consulted for the precise wording of the
**ete recognized. They are couched in extremely broad, not to say vague or *1- Dartment Bulletin, June 25, 1951, d. 1004.