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dealt with the effect of Russian recognition by the United States and the concomitant relations upon the validity of Russian corporation decrees in American courts. The opinion of the Chief Justice in the Van Der Weyde case is short and of rather a sweeping character; the opinions in the other two, both written by Mr. Justice Sutherland, contain detailed and minute discussions of the problems presented. All three cases, however, have this basic problem in common: the problem of the powers of Congress and the President in international relations. One should note that this problem is not so much one of the powers of the national government as such, as one of the division of these powers among Congress, the President, and the President and the Senate together.5
Congress has power under the Constitution "to regulate commerce with foreign nations," 6 and to declare war;' the President has power by and with the advice and consent of the Senate to make treaties, provided two-thirds of the Senators present concur; 8 and the President alone has the power in the control of foreign relations, as head of the state vested with "the executive power.
ith "the executive power." * This last power over international relations was considered as the essence of the executive power by the originator of the doctrine of separation of powersby Montesquieu himself. He wrote: “In every government there are three sorts of power: the legislative; the executive, in respect to things dependent on the law of nations, and the executive in regard to things that depend on the civil law.” 10 As Montesquieu stated, this second executive power is more properly called the judicial power, and the first "simply the executive power of the state." American decisions have followed his views and accordingly considered the President's power in foreign relations as a special federal power vested in him. Thus an early decision of the Supreme Court contrasts the President and Congress, calling the former that department which is entrusted with foreign intercourse," and the latter that which is invested with the powers of war.” 11 This competency of the several departments with respect to the conduct of foreign relations is the cause of much difficulty in deciding how far the powers of each one extend, and in deciding whether a certain act falls within the scope of one or the other. Here the principal cases present some new aspects of the problem.
THE VAN DER WEYDE CASE: THE POWER TO TERMINATE TREATIES
The power to make treaties is vested by express grant of the Constitution in the President and Senate. The framers of the Constitution had special reasons for this regulation.12 The wording of the clause of
5 The difficulties and problems concerning the distribution of powers among these different branches of the National government are treated generally in a somewhat summary but instructive fashion by Taft, The Boundaries between the Executive, the Legislative and the Judicial Branches of the Government (1916) 25 YALE L. J. 599.
OU. S. CONST., Art. 1, 8, C1. 3.
U. S. CONST., Art. 2, § 2, Cl. 2.
11 The Amelia (1801 5 U. S. (1 Cranch) 1, 38. Quoted in Yang-Tsze Ins. Ass'n. v. Fur. ness. Withy & Co. (1914) 215 Fed. 859, 866.
12 Cf. 3 STORY, op. cit, supra note 1. at 354 ; 2 Watson. op. cit. supra note 1. at 950 ; 2 FARRAND, THE RECORDS OF THE FEDERAL CONVENTION (1911) 297, 392, 538, 540, 548. Practical reasons. particularly the necessity of secrecy and immediate dispatch, were the main factors causing the power to be vested in the President and Senate rather than in Congress. Under Article 9 of the Articles of Confederation of 1777, Congress had the power to enter into treaties.
the Constitution, however, covers only the making of treaties; the question thus arises what is the law with respect to their termination, the problem involved in the Van Der Weyde case.
The facts of this case were as follows: The petitioner brought a libel against the Taigen Maru, owned by the Ocean Transportation Company Ltd., a Japanese corporation, for personal injuries suffered in 1922 when the ship was owned by a Norwegian company. The Norwegian consul intervened, claiming interest because the Japanese company would have a right to reimbursement against the former Norwegian owner by virtue of the warranty contained in the contract of sale of the vessel. The consul invoked a treaty of 1827 between the United Kingdom of Norway and Sweden on the one hand, and the United States of America on the other, and argued that the treaty deprived the United States courts of jurisdiction and gave it to Norway, to be exercised through consular arbitration. The federal district court dismissed the case "in the exercise of its discretion.” The circuit court of appeals affirmed the decree, but upon the ground that the dismissal should have been for want of jurisdiction rather than as an exercise of discretion,13 basing its decision upon the exclusive jurisdiction of Norway stipulated by Articles XIII and XIV of the treaty. The Supreme Court reversed the decision, declaring the opinion of the court below erroneous because the respective articles of the treaty had ceased to be in force. It stated the history of this termination as follows. 14
"Section 16 of the Seamen's Act of March 4, 1915, expressed 'the judgment of Congress' that treaty provisions in conflict with the provisions of the Act 'ought to be terminated', and the President was 'requested and directed' to give notice to that effect to the several Governments concerned within ninety days after the passage of the Act. It appears that, in consequence, notice was given that a large number of treaties were terminated as a whole or in part. The Treaty with Sweden and Norway of 1827 provided that it might be terminated, after an initial period of ten years, upon one year's notice. On February 2, 1918, the Government gave notice to the Norwegian Government of the denunciation of the treaty in its entirety, to take effect as of February 2, 1919, but later by an exchange of diplomatic notes, this Government formally withdrew its denunciation, except as to Articles XIII and XIV. [Foreign Relations of the United States 1919, pp. 50–52.] It was expressly stated that Articles XIII and XIV of the treaty, being in conflict with provisions of the Seamen's Act, were deemed to be terminated on July 1, 1916, so far as the laws of
the United States were concerned. [Id., pp. 53, 54.]” The respondent contended that the treaty was not validly terminated on the ground that: (1) the Seamen's Act did not specifically direct the abrogation of Article XIII; (2) the Act was not so unavoidably inconsistent with all the provisions of Article XIII as to require its entire abrogation; and (3) the diplomatic negotiations attempting to effect
13 The Taigen Maru, Van Der Weyde v. Ocean Transport Co. Ltd. (C.C.A. 9th, 1934) 73 F. (20) 922.
14 Van Der Weyde v. Ocean Transport Co., Ltd., supra note 2, at 116-117.
abrogation of the whole of Article XIII “were in excess of congressional direction and in violation of constitutional authority." 15 The court discarded these contentions with the following statement: 16
“The first and second points are unavailing, if Article XIII was actually abrogated in its entirety, and that this was the purport of the diplomatic exchanges between the two Governments is beyond dispute. As to the third point, we think that the question as to the authority of the Executive in the absence of congressional action, or of action by the treatymaking power, to denounce a treaty of the United States, is not here involved. In this instance, the Congress requested and directed the President to give notice of the termination of the treaty provisions in conflict with the Act. From every point of view, it was incumbent upon the President, charged with the conduct of negotiations with foreign governments and also with the duty to take care that the laws of the United States are faithfully executed, to reach a conclusion as to the inconsistency between the provisions of the treaty and the provisions of the new law. It is not possible to say that his conclusion as to Articles XIII and XIV was arbitrary or inadmissible. Having determined their termination was necessary, the President through the Secretary of State took appropriate steps to effect it. Norway agreed to the termination of Articles XIII and XIV and her consul cannot be heard to question
it.” It is extremely difficult to gather the ratio decidendi from these sentences. With all the respect to the Supreme Tribunal, the reader is inclined to feel like the reader in Mark Twain's famous Mr. Bloke's I tem. The more often one reads the statement the more confused does it ap. pear. It has been said that the case "seems to be a clear holding by the Supreme Court that Congress can terminate a treaty obligation.” 11 But this, of all things, is clearly not what the Chief Justice said, for he states explicitly that it was the action of the President through the Secretary of State that terminated the operation of the articles of the treaty in question.18
It is difficult to determine from what source this power of the President is derived. The Court did not base the power to terminate the treaty on the treaty-making power; neither did it base it entirely on the power of the President as head of the executive branch charged with the conduct of international relations. Rather it based the power to terminate on the presence of Congressional action. But it does not clearly appear whether it was based on the Congressional authorization and direction as such, or on an implied power resulting from the inconsistency of the new Act with the treaty coupled with the President's constitutional power and duty 19 "to take Care that the Laws be faithfully executed,” plus his power to conduct negotiations with foreign powers. The Court did not state squarely that Congress could direct the President to terminate a treaty, but held only that, if Congress enacts a statute and requests the termination of inconsistent treaties,
15 Ibid. at 117. 16 Ibid. at 117-118. 17 Note_(1936) 35 Mich. L. REV. 88, 94. 18 Van Der Weyde v. Ocean Transport Co. Ltd., supra note 2, at 118. 19 U. 3. Const., Art. II, § 3.
the President has the power and duty to do so, if in the exercise of his sound discretion he finds any inconsistency.
Even though these statements seem to show an anxiety on the part of the Court not to discuss the question too fully and are, therefore, in themselves extremely restricted, one is amazed to find a still further limitation in the concluding sentence. "Norway agreed to the termination and her consul cannot be heard to question it.” Does this intimate that the consent of Norway prevents her from asserting jurisdiction and from invoking her rights under the treaty even in a case where the organ of the other contracting party which undertook to denounce the treaty lacked power to denounce it? This would be a very strange and highly questionable extension of the estoppel doctrine the acceptance of which, in itself, seems to be not unquestionable in the field of international law.20 Furthermore, the objection, that the attempted Presidential termination of the treaty was invalid, was raised by a third party, i.e., the Japanese corporation. Could the consent of Norway to an unauthorized act of the President of the United States and the assumed resulting estoppel of her cousul to question the validity of the act deprive the respondent of the right, arising under the treaty, not to be brought within the federal jurisdiction? If the termination would have been inoperative, the consent of Norway could hardly have validated it with respect to the rights of third parties.
It seems that a great many questions are here involved which unfortunately have not been kept distinct; and these deserve a further analysis. It is important to emphasize at the outset the twofold character of the question, namely the international aspect and the municipal aspect. An international treaty, so far as the international sphere is concerned, is a compact between nations by virtue of which international rights and duties are acquired, and which may be enforced in international tribunals so far as provision is made for such enforcement.21 But an international treaty under United States law has also another and noninternational effect by virtue of Article VI of the Constitution. It becomes part of the "Supreme" law of the land if made under the authority of the United States, and it must be applied by the courts as a component of the body of statute law, together with the Constitution.22 The framers of the Constitution adopted this solution in order to safeguard the enforcement of the treaties in the states, which was both lax and difficult under the Articles of Confederation.23 Even though treaties are superior to state laws under the Constitution, their rank in respect to other federal laws is not established by the Constitution. The Constitution itself, however, is superior to all treaties, as it is superior to other laws, and the courts may examine the constitutionality of treaties as they do in regard to statutes, and this for the same reasons.24 All this refers, however, only to the effect of treaties as municipal law. What of their binding force so far as the international sphere is concerned ? Here the answer can only be given by the rules of international law.
20 For a discussion of this problem see Friede, Dar Estoppel Princip im Völkerrecht (1933) 5 ZEITSCHR. F. AUSL, ÖFF. RECHT UND VÖLKERRECHT 517.
21 The literature on the nature and effect of international treaties is enomrous. Or the most recent studies on this topic see RESEARCH IN INTERNATIONAL LAW, supra note 1, where copious references and citations may be found : DEHOUSSE. LA RATIFICATION DES TRAITÉS, ESSAI SUR LES RAPPORTS DES TRAITÉS ET DU DROIT INTERNE (1935).
22 This, however, is not the case in many other States. e.g., Italy, Germany, or Great Britain, where special laws or ordinances for the municipal "execution" of treaties are required. In many countries the topic of execution is controversial, but a discussion of that problem is not within the scope of the paper. With respect to Great Britain, see McNair, When Do British Treaties Involve Legislation (1928) 9 BRITISH YEARBOOK OF INT. LAW 59. Cf. the recent Privy Council case, Attornev-General for Canada v. At neyGeneral for Ontarlo (Jan. 28, 1937) 53 T.L.R. 325. (1937) 31 Am. J. INT. LAW 348, 353 : “Within the British Empire there is a well-established rule that the making of a treaty is an executive act. while the performance of its obligations, if they entail alteration of the existing domestic law, requires legislative action. Unlike some other countries, the stipulations of a treaty duly ratified do not within the Empire, by virtue of the treaty alone, have the force of law."
23 Cf. RAWLE. op. cit. suprn note 1, at 59 ff., 69, and the letter from Congress prepared by Mr. Jay, then Secretary for Foreign Affairs, printed in RAWLE, op. cit. supra note 1, at 314. See also Madison's remarks, 1 FARRAND, op. cit. supra note 12, at 126, 164, 316 : Pinkney's remarks, 1 ibid. at 164; 1 ibid. at 171 ; and the resolution, 1 ibid, at 229, 236, 245. The form that the treaties should operate as supreme laws was introduced in the convention by Mr. Patterson, 1 ibid. at 245, and again by Mr. Luther Martin, 2 ibid. at 28. Cf. the resolution of the Committee of Detail, 2 ibid. at 132.
It is often said that treaties are part of the municipal law proprio vigore.25 True it is that they are part of the law of the land "without the aid of any legislation, state or national,” 26 but they have this effect not by reason of their own force, but by virtue of Article VI of the Constitution, i.e., by virtue of a rule of municipal law.27 On the other hand there are treaties which are not immediately part of the law of the land but require the aid of a statute. Consequently, one must distinguish between treaties which involve additional legislation and "selfexecuting" treaties; and the problem therefore arises as to what treaties are self-executing.28 Professor Wright has attempted a classification, and distinguishes three classes of non-self-executing treaties; 29 (1) Treaty provisions dealing with finances; (2) Treaty provisions
24 The question seems to have been doubtful at first. See SERGEANT, op. cit. supra note 1, at 403. “Whether the judiciary bave power to declare an article of a treaty to be unconstitutional and therefore void, query." He cites the remark of Chase, J., in Ware v. Hylton (1796) 3 U.S. (3 Dall.) 199. 237, to the effect that "If the court possesses a power to declare treaties void, [he] would exercise it, but in a very clear case indeed.” One must observe that at this time the power of judicial review was not yet established. But the same reasons which give the Supreme Court the power of judicial review with respect to the constitutionality of statutes apply equally to the constitutionality of treaties. In fact the Court has frequently examined the constitutionality of treaties, often in the form of a discussion of the treaty power limits. Cf. New Orleans v. United States (1836) 35 U.S. (10 Pet ) 662, 736; The Cherokee Tobacco (1870) 78 U.S. (11 Wall.) 616, 620-621 ("It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument. This results from the nature and fundamental principles of government."); Geofroy v. Riggs (1890) 133 U.S. 258, 266; Missouri v. Holland (1920) 252 U.S. 416; Asakura v. Seattle (1924) 265 U.S. 332. There exists, however, no decision where a treaty has been declared unconstitutional on the question as to what the constitutional limitations are. Cf. infra note 44.
25 E.g., WRIGHT, op. cit. supra note 1, at 353. 26 Asakura v. Seattle, supra note 24, at 341.
27 There is a famous controversy among scholars of International law and general jurisprudence regarding the problem whether international law is applicable "as such" in municipal courts or only “transformed” by virtue of a municipal rule of incorporation. The prevailing view is the so-called pluralistic doctrine, that international law is appli able only by virtue of constitutional, statutory or customary rule of domestic law. It is developed by Triepel, VÖLKERRECHT UND LANDESRECHT (1899, French transl. by Brunet, Carnegie Found. ed. 1920); adopted and defended by Anzilotti, CORSO DI DIRITTO INTERNAZIONALE (1928); Strupp, Les régles général du droit de la paix (1934) 47 RECUEIL DES COURS DE L'ACADEMIE DE DROIT INTERNATIONAL 263, 404 ; CAVAGLIERI, CORSO DI DIRITTO INTERNAZIONALE (1934); WALZ, VÖLKERRECHT UND STAATLICHES RECHT (1933). It is opposed by the "monistic" approach espoused by Professor Kelsen and his school, who consider international law applicable by its own force. Kelsen's most recent studies on the topic are his Théorie générale du droit international public (1932) 42 RECUEIL DES COURS DE L'ACADEMIE DE DROIT INTERNATIONAL 119 ff, and La Transformation du droit international en droit interne (1936) 43 REVUE GÉNÉRALE DU DROIT INTERNATIONAL PUBLIC 5. Compare also the discussion of Pilotti, Plurality or Unity of Judicial Orders (1934) 19 Iowa L., REV. 244. In the United States the problem is seldom discussed. Chief Justice Marshall declared in Foster v. Neilson, intre note 31, at 314, that treaties are of infraterritorial operation only because the Constitution provides so ; Mr. Justice Holmes likewise took a rigidly pluralistic view in The Western Maid (1922) 257 U.S. 419, 432 : “When a case is said to be governed by foreign law or by general maritime law that is only a short way of saying that for this purpose the sovereign power takes up a rule suggested from without and makes it part of its own rules." During the drafting of the Constitution, Congress was originally endowed with power to enforce treaties. This power on the motion of Morris was eliminated “as being superfluous since treaties were to be laws." 2 FARRAND, op. cit. supra note 12, at 382, 390.
28 Cf. 2 BUTLER, op. cit. supra note 1, at 67 ; CRANDALL, op. cit. supra note 1, at 162; DEVLIN, op. cit. supra note 1, $ 85; MATHEWS, op. cit. suprá note 1, at 447; 1 WILLOUGHBY, op. cit. supra note 1, at 548; WRIGHT, op. cit. supra note 1, at 207, 228, 353 ; Dickinson, Aré the Liquor Treaties Self-Executing! (1926) 20 AM. J. INT. LAW 444; Henry, op cit. supra note 1. British law is dealt with by McNair, op. cit. supra note 22.
* WRIGHT, op. cit. supra note 1, at 354, 355.