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Treaty for the Renunciation of War (Briand-Kellogg Pact), 27 Au

gust 1928 88

During 1927 and early 1928 the Governments of the United States and France discussed the possibility of entering into an anti-war treaty. Soon the idea of contracting a multilateral instead of a bilateral treaty outlawing war as an instrument of national policy gained powerful support in the United States. One of the main questions discussed was the effects of breach of such a treaty. Senator William E. Borah, the Chairman of the United States Committee on Foreign Relations, while pleading for a multilateral anti-war treaty declared on 5 February 1928 that in case of a breach of a multilateral treaty outlawing war by one party an innocent party would be free to release itself from its obligations under it. He said :

All that is necessary is for the multilateral pact to be signed by Belgium, in which event all the signatories agree not to use war or force in any dispute or matter relating to Belgium. If an attack, nevertheless, is made on Belgium by one of the signatories it would constitute a breach of the multilateral treaty and would thereby ipso facto release France and enable her to fulfill her military engagements with Belgium.

Such a universal treaty would put an end to any questions of war commitments under the League Covenant or other alliances because the occasion for their exercise could only arise in case of a flagrant breach of the treaty by one or more signatories, and as stated, the legal effects of such a breach

would be to free France from alleged restraints.89 On 27 February 1928 the French Ambassador in Washington in course of his conversations with Mr. Kellogg, the United States Secretary of State, asked whether Mr. Kellog agreed with the view of Senator Borah expressed on 5th February that a breach of a multilateral treaty outlawing war by one party would release the other party from his commitments under the treaty. The Ambassador said that if a treaty could be drawn along such lines or be interpreted in the manner indicated by Senator Borah, he thought that an agreement might readily be reached. To this Mr. Kellogg replied he saw no objection to this in principle.91.

In a note delivered on 23 June 1928 to the Government of Belgium, Czechoslovakia, France, Germany, the United Kingdom, Irish Free State, Italy, Japan and Poland Nr. Kellogg wrote that "there can be no question as a matter of law that violation of a multilateral anti-war treaty through resort to war by one party thereto would automatically release the other parties from their obligations to the treaty-breaking state. Any express recognition of this principle of law is wholly unnecessary

On 27 April 1928 Mr. Stresemann, the German Foreign Minister, in a note to Mr. Schurman, the American Ambassador in Berlin, approved the idea of contracting a multilateral anti-war treaty, and he

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88 U.S., Department of State Publications No. 468, Treaty for the Renunciation of War, Text of the Treaty, Notes Exchanged, Instruments of Ratification and of Adherence, and other Papers (Washington : Government Printing Office, 1933) ; see also U.S. Foreign Relations, 1933 Vol. I, p. 1.

89 The New York Times, 5 February 1928, section 9, p. 1, col. 6. 30 See Memorandum by Mr. Spencer Phoenix, Assistant to Under-Secretary of State, of a conversation between the Secretary of State and the French Ambasşador, 27 February 1928. U.S. Foreign Relations, 1928, Vol. I, p. 97.

02 Hackworth, op. cit., p. 345.

91 Ibid.

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observed that as a matter of law an innocent party to a treaty had the right to denounce or withdraw from it in the event of its violation by other party. He said:

It is self-evident that if one state violates the pact the other contracting parties regain their freedom of action with reference to that state. The state affected by the violation of the pact is therefore not prevented from taking up arms on its own part against the breaker of the peace. In a pact of this kind to provide expressly for the case of a violation seems to

the German Government unnecessary.98 On 18 July 1928 Mr. Chamberlain, the British Foreign Minister, in reply to the United States note of 23rd June, communicated the following to Mr. Atherton, the American Chargé d'Affairs in London:

You will remember that in my previous communication of the 19th May I explained how important it was to my Government that the principle should be recognised that if one of the parties to this proposed treaty resort to war in violation of its terms the other parties should be released automatically from their obligations towards that party under the treaty, .

The stipulation now inserted in the preamble under which any signatory power hereafter seeking to promote its national interests by resort to war against another signatory is to be denied the benefits furnished by the treaty is satisfactory to

my Government.94 The governments of Belgium, France, Czechoslovakia, Italy, Japan, Poland, Irish Free State and the Commonwealth countries also responded favourably to the United States note of 23rd June. They approved the express recognition of the principle of unilateral denunciation in the proposed anti-war treaty.95 Treaty of Friendship, Commerce and Consular Rights between Ger

many and the United States, 8 December 1923 96 In regard to the suggestion that the United States suspend her commercial treaty of 1923 with Germany on the ground that Germany had violated it, the Legal Advisor of the State Department Mr. Hackworth, in a memorandum dated 27 February 1935, observed :

If it be considered, as is apparently the case, that the violations of these treaty provisions by Germany are of serious moment to the United States, the question then arises as to the action which the country should take in the matter. It is understood that protests have been made by the United States which have not availed to remedy the situation. However, the treaty in question remains in force, at least until some further action by this country is taken, and while so remaining in force, at least until some further action by this country is taken, and while so remaining in force it would act as a bar

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03 U.S. Foreign Relations, 1928, Vol. I, p. 44. 94 Ibid., p. 113. 05 Ibid., pp. 107–109, 67, 113-116, 118–119. 08 Malloy, op. cit., Vol. IV, p. 4191.

rier against the suspension by the United States of the application to German products of concessions granted in trade agreements. This barrier apparently can be removed, if at all, only by affirmative action taken by the United States on the ground of the violations in question.

The weight of opinion as expressed, at least in the United States, appears to incline to the view that a State may by its own unilateral act terminate as between itself and a State which it regards as having violated such treaty.

Notwithstanding the foregoing, it appears that very rarely has a nation undertaken to abrogate a treaty unilaterally on the ground of violation by another party.

It will thus be seen that apparently contrary to the views expressed in courts of the United States and by international law writers and the Department of State, the practice has not been to uphold the right of a State to annul unilaterally an agreement by treaty made with another State.

In view of the foregoing of the early date on which, as appears above, the Treaty of 1923 with Germany will terminate, it may be regarded as advisable for the United States to refrain from attempting to abrogate this treaty by its unilateral action.97

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97 Hackworth, op. cit., Vol. V, pp. 342-343.

[From the Michigan Law Review, Vol. 35, 1936]

COMMENTS

CONSTITUTIONAL LAW-TERMINATION OF TREATIES

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The treaty power clause 1 in the Constitution is more difficult to supplement by construction than most parts of that document because the mechanism set up was an innovation-a compromise between the tradition of executive treaty-making and the Colonial feeling that powers of government should be given to representative assemblies. There was no recognized institution to serve as a guide for interpretation as, for example, in the case of the jury trial clause. Furthermore, the dual nature of a treaty—it is a compact with the foreign power and also part of the municipal law-is a fruitful source of confusion. So it is not surprising that the absence of express language in the Constitution concerning termination of treaties left doubts which even today have not been very satisfactorily settled.

If anything is settled about termination of treaties, it is that Congress by legislation can render one ineffective so far as its being part of the municipal law is concerned. In Foster v. Neilson : it was pointed out that while a treaty is in its nature a contract, in this country it is also part of the municipal law by virtue of Article VI of the Constitution. In Taylor v. Morton, Justice Curtis took the next step, holding that Congress could render a treaty ineffective as part of the municipal law, because nothing in the Constitution made a treaty superior to an act of Congress as law; and because if Congress could not repeal a treaty as municipal law, the only means left would be the action of the President and the Senate and the foreign power in making a new treaty revoking the old one. He felt that it was not intended that our government should be made so dependent upon the consent of a foreign power.

It is clear that Justice Curtis considered the effect on the treaty only as part of the municipal law because he said, “In commencing this inquiry I think it material to observe, that it is solely a question of municipal, as distinguished from public law." & And farther on in the opinion he says that if Congress departs from the treaty, and complaint should be made to the executive or legislative departments—thus implying that a treaty still exists as a binding compact between the nations after it has been repealed by subsequent act of Congress.

1 “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." Art. 11, sec. 2, paragraph 2.

2 For a very good discussion of the arguments in the Constitutional Convention over disposition of the treaty power, see Fleming, The Treaty Veto of the American Senate 3-16 (1930).

8 2 Pet. (27 U.S.) 253 (1829).

• "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land."

5 (C. C. Mass. 1855) 23 Fed. Cas. No. 13, 799, p. 784, affirmed 2 Black (67 U.S.) 481 (1862). • (C. C. Mass. 1855) 23 Fed. Cas. 784 at 785.

The question was reconsidered in the Head Money Cases, where the reasoning and decision in Taylor v. Morton were adopted by the Supreme Court. Since that time the ruling has been affirmed many times, the most recent occasion being in Pigeon River Improvement Slide & Boom Co. v. Cox, where the Court said that the subsequent act of Congress "would control in our courts as the later expression of our municipal law, even though it conflicted with the provision of the treaty and the international obligation remained unaffected.” 9

The termination of a treaty as an international compact is an entirely different matter, but still an important one for the courts of this country because when a treaty ceases to be a treaty, it also ceases to be a part of the supreme law of the land. Unfortunately, the law is not clear as to when a treaty ceases to be a treaty.

It is said so many times that a treaty is a contract, that it would seem natural to assimulate it to contract law. This approach would lead to the view that treaty, as well as other contract, obligations cannot be terminated without consent to the other pary or such conduct as would justify repudiation. Looking at treaties in the light of contract law would also compel recognition of the difference between terminating a treaty obligation and announcing an intention not to fulfill it. But, although Justice Curtis in Taylor v. Morton clearly felt that a treaty obligation could not be terminated unilaterally, subsequent discussion of the matter has not been clear. This uncertainty as to what is termination of a treaty has resulted in confusion as to who may terminate a treaty.

As one considers the matter de novo, it would seem reasonable that a treaty be terminated by the same power that made it—the President by and with the consent of the Senate. It is not doing great violence to the letter of the Constitution to say that a grant of power to make includes the power to unmake—especially since there is no express provision for termination. This construction is also supported by policy-since the same sort of skill and experience in international negotiation is needed in terminating a treaty as in making it, both powers should be given to the same agency. It might even be said that termination requires the diplomatic skill of the executive department to an even greater degree that does the making of treaties, because termination is most likely to be considered when relations with the other power are more or less strained.

There is a judicial recognition of the President's power to terminate a treaty obligation. In Charlton v. Kelly 10 the Court said, “The executive department having thus elected to waive any right to free itself from the obligation ... it is the plain duty of this court to recognize the obligation ... as one imposed by a treaty as the supreme law of the land. ..."11 This language shows by implication at least the Court's feeling that the President has the power to terminate a treaty contract, a view which is supported by text-writers 12 and expressions of contemporary opinion.18

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7 112 U.S. 580, 5 S. Ct. 247 (1884).
• 291 U.S. 138, 54 S. Ct. 361 (1933).
• 291 U.S. 138 at 160, 54 S. Ct. 361 (1933).
10 229 U.S. 447, 33 S. Ct. 945 (1913).
11 229 U.S. 447 at 476, 33 S. Ct. 945 (1913).

12 CRANDALL, TREATIES, THEIR MAKING AND ENFORCEMENT 461 (1916) ; 1 WILLOUGHBY, CONSTITUTION 585 (1929).

13 "That the contracting powers can annul the treaty cannot, I presume, be questioned, the same authority, precisely. being exercised in annulling as in making a treaty." From a private letter written by Madison. I MADISON, LETTERS AND OTHER WRITINGS 524 (1865). And see 5 MOORE, INTERNATIONAL LAW DIGEST 321 (1906).

“They [treaty obligations) are just as binding, and just as far beyond the lawful reach of legislative acts now, as they will be at any future period, or under any form of government." THE FEDERALIST,, J. C. Hamilton ed., No. 64, p. 488 (1788).

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