Gambar halaman

Thus in Reid v. Covert 354 0..1 (1956) Yor. Justice Black,

speaking for the Court, held that the provisions of Article VI, Clause 2

do not permit any treaty to contravene the Coastitution. "It would",

he said, "be manifestly, . alien to our antire Constitutional tradition. construe Article VI us permitting the United States to exercise

[merged small][merged small][ocr errors][merged small]

apply to all branches of the National goverment, and they cannot be

mullided by the executive, or by the executive and the Senate combined."

The Restatement of the foreign Relations Law of the United States

(Second) sec, 117, Page 370 puts the matter thus :

*(1) The United States has the power under the Constitution
to make an international agreement 11

(a) the matter is of international concern, and

(b) the agreement does not contravene any of the
limitations of the Constitution applicable to all
powers of the United States."

Again, it seems to be fairly clear that some treaties are sell

executing and some are not. This proposition was laid down at an early date

by Chief Justice Marshall in the case of Poster V. Nelson 27 v.8. (2 Peters) 25.3 at 314 (1829) where, after pointing out that by general principles of

International law a treaty is a contract between nations and not ordinarily

sell-executing, he then said:

"In the U. S. a different principle is established. Our Constitution declares « treaty to be the lo of the land. It is, consequently, to be regarded in courts of Justice u equinolent to an act of the legislature, whenever It goerates of itself without the aid of any legd alative provision. But when the terms of the stipulation import

a contract, rben either of the parties engages to perfor,
particular act, the treaty addresses itrel to the political,
not the Judicial departacent and the legislature must execute
the contract before it can become a rule for the Court,

It is submitted that this language ought to be significant in

construing the meaning and effect of any treaty under which this country should

undertake to make transfers of woney or property.

Professor Cooley, in his Garcral Principles of constitutional

Law (2nd Ed. Little, Brown and Company 1892) at page 106 says:

the treaty will take effect at its enactment provided it is capable of operating of itsell without new legislation

One example, among many which could be cited, of a sell-executing treaty is found in the case of cook v, at 118-19 (1932)

where a later adopted and self-executing treaty operated, in and of Itselt

to wter the distance fru our shores

previoualy fixed by statute


which American Coast Guard cutters could stop and search British ships for

licit Liquor.

It is interesting to note that professor Cooley, in the sense passage already quoted, also has this to say regarding the treaty maldag power:

WThe Constitution imposes no restriction upon this power, but it is subject to the plied restriction that nothing can be done under it walch changes the Constitution of the Country, or robs i department of the government. . .of its Constitution authority."

W. Justice Meld observed in gcofroy v. pggu 133 0.8. 258 et 267 (1890) that "it would not be contended that the (treaty pover) extends

80 far as to authorize what

the Constitution forbids"

And at page. 163 of his treatese already referred to Professor Cooley

has this rather striding passage which bears directly on our present question:

"The full treaty maling power is in the President and Senate; but the House of Representatives has a restraining power upon it in that it may in its discretion at any time refuse to give ussent to legislation necessary to give a traty effect. Mamy treaties need no such legislation; but when monies are to be paid by the United States they can be appropriated by Congress alone; and in some other cases laws are neednu. An unconstitutional or manifestly unwise treaty the House of Representatives way possibly refuse to aid; and this, when legislation is needful, would be equinlent to u refusal of the government, through one of its branches to carry the treaty into effect. This would be an ertroue keisure, but is conceivable that a case might arise in which a resort to it would be justified."

Returning to the Restatement at Sec. 141 the rulesis stated as


"A treaty can not be self-cocuting. . .to the extent that it involves governmental action that under the Constitution can

be taken only by the Congress."
and at pages 435-36 under sec. 141 ve find the follaring:

"1. Constitutional lutation on sell-executing treaties.
Even though a tresty is cast in the fon of a self-executing
treaty, it does not become effective u dorestic law in the tited
States upon becoming binding between the taited States and the
other party or parties, if it deals with a subject matter that by
the Constitution is reserved, axclusively to Congreti. Por example,
only the Congress can appropriate money fro the treasury of the
haited States.

*8. The taited States enters into a treaty with state A under which A agrees to code « portion of its territory to the United States in return for payment of $7,200,000. Adrice and Consent to the ntification of the treaty is given by the Senate and it is ntined by the President. The ratification does not have the effect of appropriating the $7,200,000. Further action to this effect wat be taken by both Houses of Congress,

"The kere fact, however, that ı Congressional power exists does not mean that the power is aclusive '80 as to preclude the making of a sell-xecuting treaty within the area of that power."

Within these rules and principles, and having regard to the

specific and exclusive type of language found in Article I, Sec. 9, Clause 7 of the Constitution I u of the opinion that any treaty calling for the payment of money out of the Treasury of the United States vould definitely require an act of appropulation by the Congress,

I believe, further, that the authoritia cited up to this point would

lay the foundation for a good argument that such inplementing legislation

would, or night well be, required so for other types of property.

I note in this connection that W. Carl 7. Balans, Deputy Legal

Advisor of the Department of State, at page 5 of his statement to this

Condttee refers to "interests in re property, including substantial

sprovements" which were "acquired fra . . .private land bolders and voich

dietat de transferred to Panana,

It seems to me that it wglot well be entirely reasonable to equate

property interests of this natur vita public funds, in considering whether

legdination by the Congress 11 necessary to logally effectuate this transfer.

Woen, horever, we came to consider the broader watter of the cession

of national territory to mother sovereig pover the ansver, in view of past

practice and some court docisions, is less alour.

M. Balans, at puse h, of his statement, makes the point, in this

connection, that, us he clair, we do not have sovereignty in the Causal Zone,

[ocr errors]

that all we bare is the use of an area and the right to exercise Juris. diction; wille Papers retains a "titular sovereignty". And be some these are treaty rights and new be modified of tednated by another treaty." I

a mare of the provisions of the 1903 treaty on which yr. Balans buses this position. I would suggest, bowever, that wherever "titalar sovereignty"

ny reside under that treaty, that by its apress hd poeiric tenu ve bere

"in perpetuity the we, occupation, and control" of the Canal Zone and "all

the rights, power, and authority" within that Zona Mich the United States

would possess and exercise 11 it were the sovereign of the territory." It

[merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small]
« SebelumnyaLanjutkan »