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[From the Columbia Journal of Transnational Law, Vol. 13, 1974, No. 1] CONGRESSIONAL POWER TO ABROGATE THE DOMESTIC

EFFECT OF A UNITED NATIONS TREATY COMMITMENT: DIGGS V. SHULTZ (D.C. CIR. 1972)

I. INTRODUCTION

On November 12, 1965, a white minority regime in Southern Rhodesia unilaterally declared its independence from Great Britain. It was clear that the government intended to exclude the country's black majority from political participation; and the United Nations Security Council condemned the Unilateral Declaration of Independence and called upon all states "not to recognize this illegal racist minority regime.” The Resolution did not impose economic sanctions, but did urge all states “to refrain from rendering any assistance to the illegal

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regime.” 1

2

A later Security Council Resolution asked all states

to refrain from any action which would assist and encourage
the illegal regime, and, in particular, to desist from providing
it with arms, equipment, military material, and to do their
utmost in order to break all economic relations with Southern
Rhodesia, including an embargo on oil and petroleum prod-

ucts;....2 Recognizing the inadequacy of previous efforts, the Security Council adopted a resolution imposing mandatory sanctions with respect to certain goods, including chrome. This action was affirmed and enlarged in 1968 when mandatory sanctions were imposed on all imports from and exports to Southern Rhodesia by United Nations member countries.*

The United States faithfully observed the embargo for some five years. Then, in 1971, Congress passed the so-called Byrd Amendment to the Military Procurement Act. This amendment authorized the resumption of trade with Southern Rhodesia and thereby violated the United States' commitments under the United Nations Charter.

Soon after the bill was passed, a group of plaintiffs headed by Congressman Charles Diggs brought an action in the District Court for Washington, D.C., which was designed to block the Congressional authorization of trade with Southern Rhodesia. The District Court granted the defendants' motion for summary judgment on the ground that the plaintiffs had not satisfied the standing requirements of injury in fact and a logical nexus. The case was appealed to the Circuit Court of Appeals where the summary judgment was affirmed. Although the court believed that the plaintiffs had established standing, it held that the Congress has the power to abrogate a treaty. The court also noted that the issues raised in the case were not justiciable.

120 SCOR 1258th meeting 6 (1965), S/6921/Rev. 1 (1965).
220 SCOR 1265th meeting 3 (1965), S/6955 (1965).
321 SCOR 1340th meeting 26 (1966), S/7621/Rev. 1 (1966).
* 23 SCOR 1428th meeting 5 (1968), S/8601 (1968),

5 Act of November 17, 1971, Pub. L. No. 92–156, 8 503 (codified at 50 U.S.C. $ 98 (Supp. 1, 1971)). 6 Diggs v. Shultz, Civil No. 773–71 (D.D.C., filed June 9, 1972).

II. HISTORICAL BACKGROUND

a

Congressional power to abrogate the municipal effect of a treaty has long been established. One of the earliest and most influential statements of the rule was made by Justice Curtis, while presiding over the Massachusetts Circuit in 1855. He held that Congress could void the domestic application of a treaty so long as it acted within its legitimate legislative sphere. This power has been reaffirmed on numerous occasions.

Significantly, the Congressional power of abrogation does not extend beyond municipal law. Technically, Congress is not acting upon the treaty when it passes a subsequent inconsistent statute. Rather it is merely exercising its basic legislative power. Thus, Congressional action does not vary a treaty's validity under international law; barring renunciation by a state involved, the treaty remains in full force internationally. Passage of such a statute does constitute a breach of our international obligations and any affected state could seek relief by appropriate means.10

Although the domestic effect of a treaty may be superseded by a statute, a treaty is not inferior. Indeed, a statute may be overridden by a subsequent treaty.11 As the years have passed, it has become accepted and virtually unchallenged constitutional doctrine that statutes and treaties are of equal force. In the words of Justice Field:

By the Constitution a treaty is placed on the same footing; and made of like obligation with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no supreme efficacy is given to either over the other. When the two relate to the same subject the courts will always endeavor to construe them as to give effect to both, if that can be done without violating the language of either; but if the two are inconsistent, the one last in date will control the other,

7 Diggs v. Shultz, 470 F. 2d 461 (D.C. Cir. 1972), cert. denied 411 U.S. 931 (1973) (hereinafter cited as Digg8 v. Shultz].

8 Taylor v. Morton, 23 F. Cas. 784, 787 (No. 13,799) (C.C. Mass. 1855), aff'd, 67 U.S. (2 Black) 481 (1862).

9 Moser v. United States, 341 U.S. 41, 45 (1951). See also Clark v. Allen, 331 U.S. 503, 508–09 (1947); Pigeon River Improvement, slide and Boom Co. v. Charles W. Cox, Ltd., 291 U.S. 138, 160 (1934) ; Whitney v. Robertson, 124 U.S. 190, 194 (1888); Edye v. Robertson, 112 U.S. 580, 597 (1884).

10 There is the possibility that an international claim may be brought against the United States. Individuals do not have standing before the World Court, but it is likely that either the United Nations or its members could show sufficient harm to bring a claim. The United Nations could claim damages for injury to the sanctions program arising from the American violation of the Charter ; a member state could claim for its wasted compliance cost. Note, The Rhodesian Chrome Statute: The Congressional Response to United Nations Economic Sanctions Against Southern Rhodesia, 58 VA. L. REV. 511, 547 (1972).

11 Cook v. United States, 288 U.S. 102 (1933).

providing always the stipulation of the treaty is self-execut

ing. 12

14

Justice Field's statement that "the one last in date will control the other” represents an application of the maxim leges posteriores contrarias abrogant (the last expression of the sovereign will must control).13 Although the force of the maxim has been conceded many times in this context, its application is neither a logical nor Constitutional imperative. For instance, Justice Field bottomed his invocation of the maxim on an analysis of the Supremacy Clause. Although the clause does characterize both treaties and statutes as “law of the land,” the presumption of equality is far from inevitable. As Professor Louis Henkin has stressed:

It does not follow that they are equal to each other (3 and 2 are both “Supreme” to 1 but are not equal). Indeed, the Supremacy Clause obviously does not intend to assert the equality of all Supreme federal law for it lists the Constitution as well as laws and treaties as Supreme law of the land, and surely laws and treaties are not equal as law to the Constitu

tion. 15

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Once the Court's presumption of equality is questioned, several arguments can be advanced to support a theory of statutory superiority. For instance, some scholars believe that “Congress is the paramount legislator and its statutes should prevail as law in the United States in the face of a treaty even if the treaty comes later." 16 One Justice of the Supreme Court reasoned that, if anything, a statute should be granted superior force since it is “made by the President, the Senate, and the House of Representatives," while a treaty can only claim the support of the President and the Senate.1? Contentions about the inherent superiority of Congressional enactments could also be based on the history of Supreme Court practice. In contrast to the many instances of judicially sanctioned abrogation of treaties by statutes, the Supreme Court has explicitly ruled only once that a treaty provision voids an earlier statute.18

Those who would exalt treaties over statutes also make cogent arguments. To begin with, they point to the example of other countries. A growing number of states consider treaties superior to legislation. 19 În some states this precedence is established by constitutions, while in others it results from judicial decisions. Another justification for the binding effect of treaties may be inferred from the Constitution. As Henkin puts it:

12 Whitney v. Robertson, 124 U.S. 190, 194 (1888). It is settled constitutional doctrine that treaties are either self-executing, or non-self-executing. Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829). If the treaty is self-executing, the executive and judicial branches will enforce its provisions immediately. If, on the other hand, it is non-self-executing, an act of Congress must provide the domestic activating force.

As Justice Field's remark implies, only self-executing treaties are abrogated by a subsequent statute. This conclusion is based on the technical notion that a non-self-executing treaty is not “law of the land”; its implementing legislation is. “Since both are the work of Congress there is less doctrinal difficulty in insisting that the later repeal the earlier." L. HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 163 (1972).

13 Chge Chan Ping v. United States, 130 U.S. 581, 600 (1889). 14 The Supremacy Clause reads :

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 ; and the Judges in every State shall be bound thereby; any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. Ú.S. Const. art. VI, cl. 2.

15 L, HENKIN, supra note 12, at 163.
17 See Edye v. Robertson, 112 U.S. at 699.
18 Cook v. United States, 288 U.S. at 102.

16 Id.

The international obligations of the United States are the responsibility of the treaty makers. The Senate was given a part in the process but the House, and the Congress as a

whole, were purposely denied any say.20 It should be noted that the Congress had the power to enter into treaties under Article 9 of the Articles of Confederation. This Power was eliminated in the Constitution for practical reasons. The Framers believed that the necessity of secrecy and relative dispatch compelled the exclusion of the Congress from the treaty making process.21 Since the treaty process was exclusively committed to the President and the Senate, it can be argued that the Congress should not be allowed to intrude by varying a treaty's effect.

Whatever the merits of the arguments to the contrary, the Supreme Court has unequivocally come to the conclusion that treaties and statutes are equal. Any effort to challenge this basic rule would be difficult indeed. However, there is a canon of construction that statutes should, if possible, be construed to be consistent with treaty obligations. This is based on the theory that “the intention to abrogate or modify a treaty is not to be lightly imputed to the Congress.” 22 The Supreme Court has not hesitated to use this canon-often quite stringently—to limit the effect of a Congressional enactment. Chief Justice Marshall once ruled that "an act of Congress ought never to be construed to violate the law of nations, if any possible other constructions remains. .23 (Emphasis added.)

More reasonably, the Court has sometimes required that the intention to supersede a treaty “must appear clearly and distinctly from the words used in the statute.” 24 Normally, however, the Court has not invoked the canon even this forcefully. This is particularly true where the intent of Congress is clear. As the Court stated in First National Bank v. Walker Bank and Trust Co. in referring to the National Bank Act:

It is not for us to so construe the Acts as to frustrate this clear-cut purpose so forcibly expressed by both friend and foe of the legislation at the time of its adoption.25

19 Arts. 65–66 of The Netherlands Constitution, and art. 55 of the French Constitution of 1958. Article 65 of The Netherlands Constitution reads as follows: "Clauses of international agreements by whose content everyone is bound shall acquire binding force upon their publication. The publication of international agreements shall be subject to statutory regulation." Article 66 reads : "Legislative provisions in force within the Kingdom shall not be applied in cases in which such an application would be incompatible with clauses by which everyone is bound contained in agreements which have been concluded either before or after the entry into force of such provisions." Article 55 of the French Constitution provides : "Treaties or agreements duly ratified or approved shall, upon their publication, have an authority superior to that of the laws, subject, for each agreement or treaty, to its application by the other party." Sasse, The Common Market : Between International Law and Municipal Law, 75 YALE L.J. 695, 706–07 (1966).

20 L. HENKIN, 8upra note 12, at 164. 1 2 FARRAND, THE RECORDS OF THE FEDERAL CONVENTION 297, 392, 538, 540, 548 (1911). * Pigeon River Improvement, slide and Boom Co. v. Charles W. Cox, Ltd., 291 U.S. at 138 (1934). See also Menominee Tribe v. United States, 391 U.S. 404, 413, (1968).

23 Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804). See also Lauritzen v. Larsen, 345 U.S. 571, 578 (1953).

34 United States v. Lee Yen Tai, 185 U.S. 213, 221 (1902); cf. Stephens v. Cherokee Nation, 174 U.S. 445, 483-84 (1899). See also Whitney v. Robertson, 124 U.S. 190, 194 (1888). *385 U.S. 252, 261 (1966).

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In the instant case as well, the "clear-cut purpose of the legislation involved was forcibly expressed by the actions of its friends (at least) when it was adopted.

III. SPECIFIC BACKGROUND

A. The Byrd Amendment

The United States supported all the Rhodesia resolutions in the United Nations and established machinery within the government to accomplish compliance.26 This support was persistently challenged in Congress.27 After some five years of effort, the embargo's opponents introduced an amendment to the United Nations Participation Act mandating partial withdrawal from the sanctions apparatus.28 In the House of Representatives, the bill was sent to the Foreign Affairs Committee, and then to the Subcommittee on International Organizations and Movement. In the Senate, an equivalent statute was assigned to the Senate Foreign Relations Committee.

The bill did no fare well in these internationally-minded quarters. As a result, its backers attempted a jurisdictional ploy. They deleted all reference to the United Nations, Rhodesia, or the embargo, and redrafted the language in terms of national security and strategic materials.29 As a result, the specific purpose of the Amendment is not clear on its face. More importantly, however, this stratagem enabled the bill's sponsors to move it into the Armed Services Committees where it was easily attached to the Military Procurement Act of 1971. In this form the so-called Byrd Amendment was passed by both Houses:

Notwithstanding any other provision of law, on and after January 1, 1972, the President may not prohibit or regulate the importation into the United States of any material determined to be strategic and critical pursuant to the provisions of this act, if such material is the product of any foreign country or area not listed as a Communist-dominated country or area in general headnote 3 (d) of the Tariff Schedules of the United States (19 U.S.C. 1202), for so long as the importation into the United States of material of this kind which is the product of such Communist-dominated countries or areas

is not prohibited by any provision of law.30 Inasmuch as Southern Rhodesia is not a communist-controlled country, and since the United States imports large quantities of chromite from the Soviet Union, the Amendment authorized the resumption of trade between the United States and Southern Rhodesia. În compliance, President Nixon directed the Office of Foreign Assets Control to issue a General License allowing the importation of various materials from Southern Rhodesia.31

20 After Resolution 232, President Johnson issued an Executive Order to assure compliance. Exec. Order No. 11322, 3 C.F.R. 441 (1971). He issued a second Executive Order on July 29, 1968, which was designed to implement the comprehensive sanctions of Resolution 253. Exec. Order No. 11419, 3 C.F.R. 452 (1971).

27 See D. POLAN, IRONY IN CHROME, THD BYRD AMENDMENT TWO YEARS LATER (Interim Report of the Special Rhodesian Project of the Carnegie Endowment for International Peace), at 3 (1973).

28 22 U.S.C. 287 (c)(d) (1970).
20 D. POLAN, supra note 27, at 3–12.
80 50 U.S.C. $ 98 (Supp. I, 1971),
81 37 Fed. Reg. 1108 (1972).

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