tions except with the consent of the President, and it has usually followed this understanding. If such resolutions are passed, doubtless the President ought to follow them as a matter of constitutional understanding, and he usually has. However, he is the judge of the considerations which are likely to make negotiations successful and retains his discretion in spite of congressional directions. 253. Acts of the Treaty-Making Power. Obligation of the Courts. The obligation of organs of government to aid in the carrying out of the undertakings of coordinate organs has been most discussed in connection with the execution of treaties. Treaties if self-executing are of the same legal effect as acts of Congress and bind the President and the courts in the same manner. The latter may declare a treaty unconstitutional and void, but has never done so. The treaty-making power covers a broader field than does the power of Congress since it is given in full to the national government while the legislative power is divided between national and state governments. Apparently the only ground on which a treaty could be declared void would be that it dealt with a subject not proper for international negotiation, a limitation so vague as to be hardly capable of judicial application, or that it violated an express or implied prohibition of the constitution.35 Since a declaration of unconstitutionality based on constitutional prohibitions would not ordinarily relieve the United States of international responsibility, the courts have always attempted, heretofore with success, to reconcile doubtful treaty provisions with the Constitution. The courts cannot consider voidable treaties void until the political departments have acted. Thus, the Supreme Court required the extradition of an American citizen to Italy under the treaty of 1871 even though Italy had repeatedly violated the treaty by refusing to extradite Italian citizens wanted by the United States. For the courts a treaty is law from the date of its proclamation by the President until announcement of its termination by the political departments of the 84 Supra, secs. 203, 246. 36 government, or its supercession by a conflicting treaty or act of Congress. 87 254. Acts of the Treaty-Making Power: Obligation of the President. The President is legally bound by treaties the same as by acts of Congress, whether they have been made by himself or his prodecessors. He cannot modify them by agreements with the other party without ratification by two-thirds of the Senate, though precedents indicate that he may upon his own authority terminate them by denunciation under the terms of the treaty itself.38 In case the treaty directs the President in such political matters as the negotiation of another treaty, or the urging upon Congress or the States of legislation, he retains his discretion and is constitutionally competent to ignore such directions, though by an understanding of the Constitution he ought to make honest efforts to carry out the treaty. 255. Obligation of the Treaty-Making Power Itself as to Future Action. The treaty power cannot bind its own future action. Clearly it can repeal one treaty by negotiating a new one with the same party. But if it concluded a conflicting treaty with a different party, a more complicated situation arises. Under constitutional law, unquestionably the more recent treaty prevails though the courts ought to reconcile the two treaties by interpretation if possible. Under international law, however, the older treaty prevails on the theory that a treaty violative of the rights of an innocent third party is against the policy of international law. Therefore, although the treaty power is not legally bound to respect its earlier treaties, it ought to do so. The obligation is an understanding which has generally been observed. The Jay treaty with Great Britain in 1794 was alleged to violate certain provisions of the French treaty of 1778; and the Panama treaty of 1903 was alleged 37 Supra, sec. 182 et seq 38 Supra, secs. 172, 186. to violate provisions of the Hay-Pauncefote treaty with Great Britain of 1901, but they were not clearly proved to do so.39 Treaties may require subsequent action by the treaty-making power to give them effect. Such is the case with certain general arbitration treaties which require the conclusion of a special treaty or compromis for submission of each particular controversy coming under the general arbitration treaty. Such would also be true of the treaty of Versailles, which urges the conclusion of treaties upon such subjects as the maintenance of fair labor conditions, the maintenance of freedom of communications and transit, the prevention and control of disease, etc. Such provisions as this do not legally bind the treaty-making power, but undoubtedly the President and Senate ought to make due efforts to conclude such treaties when the occasion arises. 256. Acts of the Treaty-Making Powers: Obligation of Congress. Treaties may require action by Congress to give them effect. Where executive and judicial action alone is sufficient to give treaties effect they are said to be "self-executing," but an exact distinction between those treaty provisions which become ex propria vigore the supreme law of the land and those which require legislative action is not clear. In Foster v. Neilson (1829), Chief Justice Marshall thought the provision of the Florida cession treaty that grants of land made in Florida prior to January 24, 1818" shall be ratified and confirmed" was not self-executing and that the courts could not recognize such titles until Congress had acted. Subsequently an examination of the Spanish text of the treaty showed that the phrase should have read "shall remain ratified and affirmed” and in United States v. Percheman (1833) Chief Justice Marshall held that this rendered the clause self-executing, supporting his decision also on principles of general international law.40 However, there are many acts which the treaty power cannot itself perform or the performance of which it cannot authorize by any organ other than Congress, yet Congress is under a certain obliga39 Wright, Conflicts between International Law and Treaties, Am. J. Int. Law, 11: 576-579. 40 Foster v. Neilson, 2 Pet. 253 (1829); U. S. v. Percheman, 7 Pet. 51 (1833); see also supra, sec. 137. tion to perform them itself when necessary for carrying out a treaty. The obligation may seem absolute in view of the statement of Article VI that treaties are the supreme law of the land, but in practice, and in view of the equal constitutional power of Congress itself to make supreme law superseding treaties, the constitutional duty of Congress must be considered as an understanding of the Constitution, rather than a law."1 41 42 Practice indicates that treaty provisions dealing with matters which for historical and practical reasons have been placed by the Constitution peculiarly within legislative competence, require congressional cooperation for their execution. Of this character are treaty provisions dealings with finances, whether (1) requiring appropriations of money, or (2) altering revenue laws and commercial regulations. While even in these cases Congress ought to act so as to give effect to a ratifed treaty, yet the treaty-making power is under an equal obligation to consider, in connection with. its view of international policy, the views on domestic policy of Congress, before finally ratifying the instrument. In these matters foreign and domestic policy are connected with extraordinary intimacy, and a complete collaboration of the treaty power and the legislative power is appropriate. An opportunity for Congress to pass upon treaties of this character before ratification would seem generally expedient though not legally necessary." 43 41 Hamilton, however, wrote in a draft for Washington's message to the House of Representatives on the Jay treaty: "The House of Representatives have no moral power to refuse the execution of a treaty which is not contrary to the Constitution, because it pledges the public faith; and have no legal power to refuse its execution, because it is a law, until at least it ceases to be a law by a regular act of revocation of the competent authority." Works, Hamilton ed., 7: 566. 42 The Constitution not only gives the financial powers to Congress, but it gives them especially to the House of Representatives. The terminology of Art. 1, sec. 7, cl. 1, and sec. 9, cl. 7, is a different sort of delegation from the powers given by Art. 1, sec. 8. This is a recognition of the historical connection between control of the purse and the rise of the House of Commons in England. See the Federalist No. 58; Magoon, Reports, p. 151. 43 The objection brought in the Federal Convention of 1787 against such submission to Congress, that it would make secrecy impossible (Farrand, op. cit., 2: 538), would probably have less weight at present. See also supra, secs. 59, 149, 154. Sir Cecil Hurst reported to the 6th committee of the First Assembly of the League of Nations that " at the time when the convention of Other treaty provisions require for their performance detailed supplementary legislation or specific acts which the Constitution directs to be performed by Congress. In this category are treaty provisions requiring (3) the incorporation and administration of territory, (4) the organization of courts and creation of offices and (5) a declaration of war in certain contingencies, or abstention from war. 45 In these cases Congress is bound to act and carry out in good faith the obligations which the treaty power has undertaken. These matters are ones upon which a proper decision might be expected from a comprehensive view of international relations, and hence the treaty power enjoys a greater freedom of action than in those of the former category. Another class of treaty provisions are by nature self-executing, but because of historical traditions and constitutional interpretation, require legislation to be executable. Here are included treaties (6) defining crimes and extending criminal jurisdiction. The common law has been traditionally assiduous in protecting the individual against arbitrary criminal punishment, and this spirit, especially in reference to criminal procedure, has been embodied in Article 3, Section 2, Clause 3, the Fifth and Sixth Amendments, but federal courts are not denied a general criminal jurisdiction by any specific clause of the Constitution, and in some early cases they actually assumed jurisdiction of crimes defined by customary international law. This view has, however, changed, and it is now held that Saint Germain (for control of arms trade) was drawn up it was realized that in certain countries the complete execution of its provisions might necessitate legislation" (First Assembly Document, No. 199) and the Temporary Mixed Commission on Armaments attributed the failure of the United States to ratify this convention to the failure of Congress to pass the necessary legislation (Second Assembly Document, No. 81, p. 15). Congress failed to respond to the President's request for legislation in execution of similar provisions of the Brussels act of 1890. (Moore, Digest, 2: 468-474.) Supra, sec. 118. 44 The terminology of Art. 4, sec. 3, cl. 2, indicates that the power is supplementary in character. 45 That the power of Congress to declare war is directory, rather than a peculiar congressional prerogative, is indicated by the incorporation in the same clause of the power to "make rules concerning captures," which is clearly shared with the treaty power. Supra, sec. 151. |