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many statutes, be made but to be broken; and that regularity of observance could only be assured of rules sanctioned by long custom.
It is not the purpose of this article to show either that the hopes of the legal school were premature or that the skepticism of the diplomatic school was without foundation. The object is rather to show how treaty-made international law can and in many cases has gained the sanction ordinarily associated with customary law, that of inertia, resulting from long-continued usage. In so far as treaties are habitually referred to as a rule of action by the administrative and judicial officers of states in deciding cases which come before them, this result is obtained. It remains to inquire to what extent treaties are regularly utilized as a source of law in the leading states of the world.
1. THE NATURE OF TREATIES
Are international treaties and conventions an immediate source of law to be applied by courts? This question seems easy to answer. By the constitutions of the United States 2 and Mexico 3 treaties are declared to be the supreme law of the land and are applied by courts in appropriate cases involving private rights in the same manner as statutes. Courts in Switzerland, Germany and France have shown a tendency to apply the provisions of promulgated treaties as a rule of decision in recent cases although they have sometimes expressed the opinion, in France especially, that such instruments are to be executed by the political organs, and that their rules become cognizable by courts only when embodied in statutes or ordinances. In England it is firmly established that a treaty is not an immediate source of law for courts, except prize courts, and can not operate to divest legal rights of Englishmen even when its provisions are embodied in executive orders. An enabling act of Parliament is necessary to accomplish that result.
2 Constitution of the United States, Art. VI, sec. 2.
3 Constitution of Mexico, Art. 97, cl. 6.
4 Ware v. Hylton, 3 Dall. 199 (1796); Wharton, A Digest of the International Law of the United States, 2d ed., Washington, 1887, 2; sec. 138.
5 W. Kaufmann, Die Rechtskraft des Internationalen Rechtes und das Verhältnisse des Staatsorgans zu demselben, Stuttgart, 1899, p. 86, et seq.
6 Walker v. Baird, L. R. (1892), A. C. 491; T. E. Holland, Studies in International Law, Oxford, 1898, p. 190, C. M. Picciotto, The Relation of International Law to
These statements, however, are made on the supposition that agreement is reached as to what constitutes a valid treaty. What procedure must be consummated before an instrument negotiated between the executive authority of two nations becomes a genuine treaty at international law? Signature by the plenipotentiaries, with full powers to conclude the treaty, does not have that effect. Ratification by the authority in either or both signatory states, competent by their constitutions to perform that function, does not. It is only after exchange of ratifications, evidenced by official publication in the signatory states, that the instrument is generally considered internationally binding, in the sense that the national honor is pledged to its observance and a violation will give just cause for diplomatic protest. This then is the criterion selected for deciding when an instrument is a treaty at international law, and hence for deciding whether treaties are an immediate source of law to be applied by courts.
The incapacity of the courts of some countries, especially of England, to apply treaties, even when ratifications have been exchanged, is, however, so generally known that it might well be considered subject to international cognizance. A foreign state does not in fact regard a treaty with England affecting the rights of individuals as completed until an act of Parliament has provided for its execution. Sometimes, in fact, the effectiveness of the treaty is in terms made dependent on such an act, and often the Cabinet, although legally competent to exchange ratifications, will not do so until Parliament has acted.9
the Law of England and of the United States of America, New York, 1915, p. 59, et seq. On the application of treaties in prize courts, see The Chile, L. R. (1914), p. 212; Picciotto, op. cit., p. 42.
7 L. Oppenheim, International Law, 2 vols., London, 1912, 1: 561, speaks of ratification alone as giving treaties a binding effect. The final consent of both parties, as evidenced by the exchange of ratifications seems to be necessary. Kaufmann, op. cit., pp. 39-40.
8 Thus the extradition treaty of 1852 with France provided that "Her Majesty engages to recommend to Parliament to pass an act to enable her to carry into execution the articles of the present convention. And when such act shall have been passed, convention shall come into operation from and after a day to be fixed." Holland, op. cit., p. 190.
* * *
9 Thus the ratification of the Declaration of London was withheld, pending passage of the proposed Naval Prize Bill of 1911, which being thrown out by the House of Lords, the convention was not ratified. In Halsbury, Laws of England, 6:440,
Some writers, therefore, notably Kaufmann, point out 10 that the completion of a treaty must be considered a process of four rather than of three stages: (1) signature, (2) ratification, (3) exchange of ratifications, and (4) putting in force, which includes all acts such as publication, assent of the legislature, or even passage of enabling acts and promulgation of executive ordinances, necessary to give the instrument legal effectiveness, not only as between the two states, but also as to all private individuals and administrative and judicial officers deriving rights or duties from it. After exchange of ratifications, the treaty is concluded (abgeschlossen); only after these final acts is it in force (vollziehbar). In the United States exchange of ratifications has both effects, except for treaties requiring an appropriation and possibly for treaties affecting the tariff, which require the consent of Congress. In England the treaty is concluded on exchange of ratifications, and is in force on the passage of an enabling act.
There is an apparent contradiction in the constitution of a state which permits one authority to exchange ratifications, thus engaging a national responsibility, but yet requires the additional act of other authorities to put the treaty in force in the sense of giving it internal effectiveness. This contradiction is in fact resolved by a sort of comity which may exist between either the departments of government within the state or between the two states. Thus by a constitutional understanding the legislature may be bound to pass acts necessary to give effect to ratified treaties. In the United States this principle has been judicially asserted,11 and legislative concurrence, where necessary, has rarely been withheld. 12 But here the necessity of the concurrence of
note (e), it is stated that "In England there is no codified list of subjects upon which the Crown has power to bind the subject by treaty without Parliamentary sanction. But where any reasonable doubt arises it is usual either to obtain statutory authority beforehand, or to stipulate in the treaty that the consent of the legislature shall be obtained."
10 Kaufmann, op. cit., p. 31, et seq.
11 Justice Iredell in Ware v. Hylton, 1 Dall. 199 (1796). See also Mr. Livingston, Sec. of State, to Mr. Serurier, June 3, 1833, Wharton, 2:67; Cushing, Att. Gen., 6 Op. 296 (1859); Dana, notes to Wheaton, p. 715.
12 In the case of a treaty with Mexico of 1883, providing that necessary legislation should "take place within twelve months from the date of exchange of ratifications" (Art. 8, Malloy, p. 1151), Congress failed to act. Moore, 5:222.
two-thirds of the Senate for ratification makes Congressional disapproval of a ratified treaty unlikely. 12 In other countries legislative obstruction of treaties has been more frequent. But in such a case an understanding usually exists with the other signatory that the treaty can only become effective on legislative action. 13 In fact, in some English treaties this dependence of the treaty on Parliamentary action has been specifically provided in the instrument itself. 14
From a standpoint of pure law, the contradiction can be resolved either by a change of the national law, so that ratification followed by exchange of ratifications, through whatever procedure provided, will make the treaty enforceable, or by a frank recognition on the part of nations that exchange of ratifications, with some states, is simply a step in the procedure of completing a treaty, which is not consummated until all acts of legislative and executive departments necessary to give the treaty complete internal validity according to the constitutional law of that country, have been carried out.
The origin of this curious contradiction in the constitution of many states is to be found in the rise of constitutionalism and the division of the powers of government among various departments, each of limited authority and consequently incapable of performing executory treaties unless validated by the organ constitutionally vested with authority to legislate for it. A treaty was originally a pact between monarchs, who, having immediate authority over all officers of government and subjects, were in a position to fulfill its conditions, whether it required
128 A Constitutional amendment changing the rule requiring assent of two-thirds of the Senate to one requiring approval by a simple majority of both houses has been advocated on the ground that the latter would be easier to obtain. J. T. Young, The New American Government and its Work, New York, 1915, p. 25.
13 "A treaty is the supreme law of the land in respect of such matters only as the treaty-making power, without the aid of Congress, can carry into effect. Where a treaty stipulates for the payment of money for which an appropriation is required, it is not operative in the sense of the constitution. Every foreign government may be presumed to know that, so far as the treaty stipulates to pay money, the legislative sanction is required." Turner v. Am. Baptist Missionary Union, 5 McLean, 347; Wharton, 2:73. In a strictly legal sense it is doubtful whether such a presumption is warranted.
14 British extradition treaty with France, 1852; treaty ceding Heligoland to Germany, 1890, see Holland, op. cit., p. 190. See also treaty of Washington with the United States, May 18, 1871, Art. 33.
a single action, such as the payment of a sum of money or a cession of a tract of land, or continuous action, such as the protection of the rights of domiciled aliens or the extension of specified advantages to merchantmen and privateers of the other signatory in time of war. When, however, the monarch lost his control of both the judiciary and the legislature, treaties ratified by him could have for those organs no more validity than any other ordinance or exercise of the prerogative, and yet he retained the power of exchanging ratifications because the control of foreign relations continued to be left with him as chief executive, and it was not fully realized that public officers and individuals as well as states were immediate subjects of conventional international law. In England, therefore, where Parliament has been most emphatic in its limitations upon the power of the prerogative to affect private rights, the necessity of a Parliamentary enabling act has been most evident.
However, while the constitutional protection of personal liberty appeared to demand that private rights be protected against the arbitrary granting away of the executive, the international responsibility involved in treaties seemed to demand that once that responsibility be undertaken by exchange of ratifications, the ability to execute should exist. This latter aspect of the case has had a tendency to prevail during the past century, but with a recognition of the former. Beginning with the American Constitution of 1789, there has been a tendency (1) to require the concurrence of more authorities for ratification, but (2) to give treaties once ratified a higher legal validity within the state.
(1) In most countries the executive alone is no longer competent to ratify treaties. By the United States Constitution, 15 treaties must be ratified by the President by and with the advice and consent of twothirds of the Senate, and by an extra-constitutional custom, treaties requiring appropriations and possibly those affecting revenue laws, require assent of the House of Representatives also.16 By the German
15 United States Constitution, Art. 2, sec. 2.
16 Wharton, 2:19, 21. Practice indicates the necessity of Congressional consent to commercial treaties, but "judicial decisions sanction the contrary view, namely, that the treaty power can effect customs agreements with foreign Powers without Congress being consulted," E. S. Corwin, National Supremacy, New York, 1913, p. 11, citing Bartram v. Robertson, 122 U. S. 116 (1887), Whitney v. Robertson, 124 U. S. 190 (1888).