Constitution 17 the Kaiser may enter into treaties, but ratification requires the "zustimmung" of the Bundesrath and the "genehmigung" of the Reichstag. The French constitutional law 18 provides that the President may negotiate and ratify treaties, but treaties of peace and of commerce, and those requiring an appropriation or affecting the personal or property rights of Frenchmen in foreign counties, may not be ratified until they have received the assent of both chambers of Parliament. In practically all continental European states assent of the legislature is required to treaties affecting personal rights before a definitive ratification.19 This assent, however, is not equivalent to the passage of an enabling act. "The legislature in such a proceeding acts as a council of state, rather than as a representative of the people or of the other constituencies, and really discharges an executive function." 20 In England both negotiation and exchange of ratifications are still in the power of the Crown acting through the Cabinet,21 but frequently the effectiveness of the treaty is specifically made dependent upon action by Parliament, or actual exchange of ratifications is withheld until such action has been forthcoming.22

(2) On the other hand the capacity of courts and administrative officers to use treaties as an immediate source of law and jurisdiction has undergone a development. The American Constitution 23 makes treaties the supreme law of the land on a par with statutes, and the pro

17 German Constitution, Art. 11; Kaufmann, op. cit., p. 35.

18 French Constitutional Law, July 16, 1875, Art. 8; Esmein, Le Droit Constitutional Français et Comparée, Paris, 1914, 6th ed., p. 762.

19 Austria, Constitutional Law, Dec. 21, 1867, sec. 11 (a); Austria-Hungary, Constitution, Dec. 21, 1867, sec. 1 (a); Belgium, Constitution, Feb. 7, 1831, Art. 68; Netherlands, Constitution as amended Nov. 6, 1889, Art. 59; Portugal, Constitutional Charter, April 29, 1826, Art. 75, sec. 8, and amendment, July 5, 1852, Art. 10; Spain, Constitution, June 30, 1876, Art. 55, sec. 4; Switzerland, Constitution, May 29, 1874, Art. 85, sec. 5. See also, Oppenheim, op. cit., 2:546; Kaufmann, op. cit., pp. 3337.

20 S. E. Baldwin, The Part taken by Courts of Justice in the Development of International Law, Am. Law Rev., 35:224. La construction, Ltd., Cour de Cassation, Dec. 22, 1896. Barclay, Companies in France, 2d ed., London, 1899, pp. 20, 95. 21 Oppenheim, op. cit., 2:546; Blackstone, Commentaries 1:257; Picciotto, op. cit., p. 61.

22 Holland, op. cit., p. 190; supra, notes, 8, 9.

23 United States Constitution, Art. 6, sec. 2, cl. 2.

visions of such instruments have been applied by both State and Federal judicial and administrative officers, both as a ground of competence 24 and as a rule of decision.25 The German Reichsgericht held in 1885 * that "The contents of a treaty, constitutionally concluded with the consent of the Bundesrath and the Reichstag and published, becomes a legal norm binding on the courts." The French Conseil D'Etat laid it down in the early nineteenth century that one could not bring an action before it on the ground of a denial of rights guaranteed by treaty," nor demand by contentious litigations the interpretation or application of treaties.28 As late as 1861 this view was supported on the following reasoning: 29

In principle the existence, the validity, the interpretation and the application of treaties, in their relation to national law and public interest, are outside of the jurisdiction of courts, either administrative or judicial. As the law itself, these treaties are for the protection of all demands, cuias est condere legem, eiusdem est interpretari. Diplomatic acts, whatever they are, proceed only by right of sovereignty. The constitution permits no delegation of this right. It reposes in its entirety in the hands of the supreme executive of the state who alone may exercise it.

And this view is adopted by Pradier-Fodèré, who says that 30

Treaties are before everything, actes du gouvernement. From this point of view they may not be interpreted by any authority except the government itself, represented by the executive power.

24 Competence of administrative officers; U. S. v. Robbins, Bee, Admr. 266; Terlinden v. Ames, 184 U. S. 270 (1901), Scott, 436; Tucker v. Alexandroff, 183 U. S. 424 (1901); Ex parte Toscano, 208 Fed. Rep. 938; Competence of Federal courts; Ware v. Hylton, 3 Dall. 199; Hauenstein v. Lynham, 100 U. S. 483; Wildenhus's Case, 120 U. S. 1, Scott, 225. Competence of court limited by treaty: Tellefsen v. Fee, 168 Mass. 188; Succession of Rabasse, 47 La. Ann. 1452.

25 U. S. v. The Peggy, 1 Cranch, 109; Geoffroy v. Riggs, 133 U. S. 250, 266 (1889), Scott, 413; U. S. v. Rauscher, 119 U. S. 407 (1886), Scott, 274; Wharton, 2:71.

26 Urtheil des Deutsches Reichsgerichts, Sept. 22, 1885; Ent. Str. 12:384.

27 Arrêts du Conseil d'Etat, 5:638.

28 Ibid., 3:310, 389, 403, 457, 579; 4:122, 653.

29 Dalloz, Juris. Gen., Rept. t. 42 (1861), s. v. Traité Int., No. 152; Ibid., Supt. t. 17 (1896), s. v. Traité Int., No. 15.

30 Pradier-Fodèré, Traité de Droit International Public, 8 vols., Paris, 1885-1906, 2; sec. 1172.

Yet other decisions of both the Conseil d'Etat and the Cour de Cassation, laid down perhaps in times of less monarchical domination, assume a reverse position. The former in 1839 thus explained the effect of treaties.31

The execution (of treaties) * * devolves not on a single authority, but on all, according to their competence. The execution belongs to diplomacy, when a principal treaty demands accessory conventionsthe execution can be confided to the army if it can be accomplished no other way—the execution will be political if it concerns a treaty of alliance or an act of mediation. It can require the co-operation of the administration, if the acts are of that kind. Thus, for example, postal conventions will be executed under direction of the postal department. It must be finally admitted that the judicial authority will have its part in the execution of treaties if on occasion there arise private controversies which are in its competence, such as questions of property, of family, of succession, or others of that kind.

In the same year the Cour de Cassation held that

32

Treaties between nations are not simply administrative and executive acts; they have the character of law, and can be applied and interpreted only by the authorities charged with applying all the laws, according to their authority. The courts have the right of interpreting treaties, whenever controversies which require such interpretation have for their object, interests within their (the courts). jurisdiction.

The Swiss Constitution 33 gives the Bundesgericht jurisdiction of complaints by private individuals against decisions and orders by Cantonal officers in violation of the provisions of treaties, and that court 34 has affirmed its competence whether the treaty in question is with the Swiss Bund or an individual Canton. In England prize courts have affirmed their duty to apply all appropriate treaties,35 although it seems to have been assumed that an enabling act was necessary to give the

31 Ord. Conseil d'Etat, March 27, 1839; Dalloz, Juris. Gen., Rept., t. 42, s. v. Traité Int., No. 131.

32 Cour de Cassation, June 24, 1839, Dalloz, Juris. Gen., Rept., t. 42, s. v. Traité Int., No. 154.

33 Swiss Constitution, May 29, 1874, Art. 113, cl. 3; Bundesgesetze uber Organization der Bundesrechtspflege, Art. 59.

34 Urtheil des Schweiz Bundesgericht, Jan. 30, 1892, Ent., 18:203.

35 The Chile, L. R. (1914), p. 212; Picciotto, op. cit., p. 42.

Declaration of London validity.36 But as to the other courts, Blackstone's 37 assertion that treaties ratified by the Crown are law throughout the kingdom has not been in accord with practice. It was said by the Privy Council in Walker v. Baird: 38

The learned Attorney-General who argued the case before their lordships on behalf of the appellant, conceded that he could not maintain the proposition that the Crown could sanction an invasion by its officers of the rights of private individuals whenever it was necessary in order to compel obedience to the provisions of a treaty.

The court did not find it necessary to pass on the question he did present, whether such a power would exist in pursuance of a treaty of peace or a treaty to avert a probable war. In fact, the incapacity of English courts to apply treaties immediately is so well known that the United States Supreme Court took occasion to animadvert to it in the case of U. S. v. Rauscher: 39

Turning to seek in judicial decision for authority upon the subject, as might be anticipated we meet with nothing in the English courts of much value for the reason that treaties made by the Crown of Great Britain with other nations are not in those courts considered as part of the law of the land, but the rights and the duties growing out of those treaties are looked upon in that country as matters confided wholly for their execution and enforcement to the executive branch of the government.

This very notoriety of the British practice, however, makes it incumbent on states concluding treaties with Great Britain to take cognizance of it, and so to regard the passage of an enabling act as a necessary step in the definitive completion of a treaty.40

Kaufmann summarizes the practice of courts at present as follows: 41

36 After failure of the Naval Prize Bill of 1911, the Declaration of London was not ratified, but probably would have been binding in prize courts if it had been, even in the absence of the Parliamentary sanction. (Picciotto, op. cit., p. 63), and possibly in other courts. See Bentwich, The Declaration of London, p. 126.

37 Blackstone, Commentaries, 1:257.

38 Walker v. Baird, L. R. (1892), A. C. 491. See also Sir Robt. Phillimore's opinion in the Parlement Belge, L. R. 4 P. D. 129 (1879), and Picciotto, op. cit., pp. 67, et seq.

39 U. S. v. Rauscher, 117 U. S. 407.

40 Supra, note 13.

41 Kaufmann, op. cit., p. 93.

Today in all civilized countries, especially in those of a more or less widely extended circle of relations, according to municipal law norms, the recognition, application and interpretation of the provisions of treaties are immediately affairs of the courts and it is possible for parties to appeal in legal manner to the courts themselves on the determinations of treaties and on general international law principles.

Although this seems to go rather farther than the authorities warrant, especially with reference to France and Great Britain, there undoubtedly is a tendency to recognize the immediate applicability of ratified treaties in all states.

The change in the constitutional organization of states does not, however, alone account for the contradiction which has arisen between the power of ratifying and the power of giving complete effectiveness to treaties. The change in the character of treaties themselves has added to this result. With the increase in means of transportation and intelligence, immigration, travel and commerce have brought about in both customary and conventional international law a wider range of relations between subject and subject. Where formerly treaties dealt largely with acts to be performed by the state as a whole or by its army or navy, now the continuing rights of individuals and the continuing duties of officers to aid in various kinds of international co-operation have come into prominence. Formerly states were almost the only subjects of conventional international law; now individuals and public officers are very frequently the immediate subjects of treaty stipulations. This evolution has emphasized the distinction which Kaufmann draws between contractual treaties and treaties forming an international legal order.42 The former contemplate performance by a single authority representing the state, such as the cession of a tract of land or the payment of a sum of money; the latter contemplate a continual administration which may require action by consular, diplomatic, mili

42 Kaufmann, op. cit., p. 31. In reference to the latter kind of treaty he says: "The objective legal norms contained in the treaty have force as an international legal norm for and within the entire international society concerned, and, therefore, also within each one of the state societies belonging to it, which in so far are only constituent parts of the internationalen Völkergemeindschaft." Jellinek draws the same distinction, saying of treaties of the latter class, "Such unions are not in the character of contracts, for they shape no jus intra partes but a jus supra partes." System des subjectiven Öffentliche Rechtes, pp. 195–196.