which require for their performance detailed supplementary legislation or specific acts which the Constitution provides shall be performed by Congress (e.g., incorporation of territory, organization of offices and courts, and declaration of war); and (3) Treaty provisions which are by nature self-executing, but because of historical tradition and constitutional interpretation, require legislation to be executed (e.g., treaties defining crimes). This classification, however, is perhaps not very methodical. It would appear more orderly to emphasize other points of distinction. There are classes of treaties which cannot be self-executing because the Constitution itself, expressly or impliedly, prescribes that the act which the treaty makes obligatory shall be done by Congress. Such is the case where a treaty calls for an appropriation of money which is exclusively within the power of Congress.30 Here therefore, the Constitution itself prevents the treaty from being self-executing. Apart from this group, judicial interpretation has created another limitation on the broad rule of Article VI of the Constitution: Chief Justice Marshall, in the case of Foster v. Neilson, 31 drew a distinction dependent upon whether the parties made an agreement which by its terms was to operate directly on private rights or engaged themselves only to take certain legislative action. In the latter case, not the constitutional grant of power to Congress, but the intent of the "High Contracting Parties," their shaping of the content of the obligation, is the controlling factor.32 The question becomes thus a problem of construction which has offered many difficulties.33

The foregoing considerations show that the international validity of treaties is a different problem from the question of their "infraterritorial" operation, as Marshall styled it. The question thus arises, what is necessary to the international validity of treaties, particularly if they cannot be executed without Congressional action. Is Congressional action necessary in such cases for the treaty to become internationally effective? The effect of a constitutional provision upon the

30 This is the generally accepted view and practice. Cf. Turner v. The American Baptist Missionary Union (C.C.D. Mich. 1852) Fed Cas. No. 14,251: RAWLE, op. cit. supra note 1, at 63-64. See also 2 BUTLER, op. cit. supra note 1, at 78-79; MATHEWS, op cit. supra note 1, at 467; 1 WILLOUGHBY, op. cit. supra note 1, at 549; Dickinson, op. cit. supra note 28, at 449; Henry, op. cit. supra note 1, at 780. Doubts exist with respect to treaties affecting the revenue laws (MATHEWS, op. cit. supra note 1, at 467, n. 2. 469; Henry, op. cit. supra note 1, at 780), and with respect to treaties involving the creation of criminal offenses. Certain cases seem to intimate that special legislation is necessary. See The Bello Corrunes (1821) 19 U.S. (6 Wheat.) 152, 171, approved by Mathews, op. cit. supra note 1, at 451, and apparently by Sergeant, op. cit. supra note 1, at 396. See also The Over the Top (D. Conn. 1925) 5 F. (2d) 838, 845: "It is not the function of treaties to enact the criminal law of a nation." This was approved in 9 HUGHES, FEDERAL PRACTICE (1931) 18, n. 34. The same rule is announced by WRIGHT, op. cit. supra note 1, at 356. Contra: Dickinson, loc. cit. supra note 28. Doubting: Henry, op. cit. supra note 1, at 782. It might be added in favor of the view which requires statutory action that the Supreme Court in the first of the liquor treaty cases alluded to the fact that the "treaty creates no offense against the law of the United States." Ford v. United States (1927) 273 U. S. 593, 602. Furthermore, in United States v. Flores (1933) 289 U. S. 137, 151, there is a dictum that "the criminal jurisdiction of the United States is wholly statutory;

31 (1829) 27 U. S. (2 Pet.) 253, 314: "Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract-when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislative must execute the contract, before it can become a rule for the court." The statement has been repeated in United States v. Arredondo (1832) 31 U. S. (6 Pct.) 691, 735, and in Rhode Island v. Massachusetts (1838) 37 U. S. (12 Pet.) 657, 747.

32 Cf. Dickinson, op cit. supra note 28, at 451; Henry, op. cit. supra note 1, at 777.

83 This is very well illustrated by the fact that the Court a few years later had to reverse its construction of the treaty given in Foster v. Neilson, supra note 31, in the case of United States v. Percheman (1833) 32 U. S. (7 Pet.) 51. Cf. Rhode Island v. Massachusetts, supra note 31, at 747.

36

international validity of treaties is controversial. One theory goes so far as to maintain that every treaty ratified by the head of the state is binding regardless of constitutional restrictions. More strongly supported is the opposite view, that "a state is not bound by a treaty made on its behalf by an organ or authority not competent under its law to conclude the treaty," invoking the old maxim, qui cum alio contrabit vel est, vel debet esse, non ignarus conditionis ejus. Professor Dehousse has suggested a compromise view and distinguished between "extrinsic" and "intrinsic" unconstitutionality of treaties. If the treaty is entered into by a constitutionally incompetent organ, it is void; if the organ is constitutionally authorized to act but the treaty's content is not within the constitutional powers, it is valid.3 But even if it be accepted that a treaty is valid only if made by a constitutionally authorized organ, it does not follow that the Constitution requires the co-operation of Congress for the international formation of the contract, even though its internal efficacy may require legislation. The contrary is true. It may be advisable to defer ratification until Congress has acted,38 but Congressional action is not a constitutional prerequisite to the making of the treaty even where it is necessary for its enforcement. The question is one of constitutional interpretation.39 The view here taken seems clearly sound where Congressional action is required only because of the intent of the parties, but apparently it is also the case where the executability depends on Congressional action because of the Constitution itself.40

24 A survey of the controversy is given in RESEARCH IN INTERNATIONAL LAW, op. cit. supra note 1, Comment to art. 21. See the later discussion by Fairman, Competence to Bind the State to an International Agreement (1936) 30 AM. J. INT. LAW 438; and also von Szaszy, Die Parlmentarische Mitwirking beim Abschluss volkerruchtlicher Vertrage (1934) 14 ZEITSCHR, OFF. RECHT 459.

25 Partisans of this theory are such outstanding European writers as BITTNER, DIE LEHRE VON DEN VOLKERRECHTLICHEN VERTRAGSURKUNDEN (1924); ANZILOTTI, CORSO DI DIRITTO INTERNAZIONALE (1928) 259, 359; Mestre, Les traites et le droil interne (1931) 3 RECUEIL DES COURS DE L'ACADEMIE DE DROIT INTERNATIONAL 237, 241, n. 1. TRIEPEL, op. cit. supra note 24, at 233; and many others. See references in RESEARCH IN INTERNATIONAL LAW, loc. cit. supra note 34. Von Szaszy, op. cit. supra note 34, likewise considers as binding all treaties entered into by the head of the state except those "in manifest violation" of the constitution.

26 This is he view taken in 2 TUCKER, op. cit. supra note 1, at 724; I. WILLOUGHBY, op. cit. supra note 1, at 528 (but apparently with some limitations, infra note 37); RESEARCH IN INTERNATIONAL LAW, loc. cit. supra note 1; and the writers there referred to.

37 DEHOUSSER LA RATIFICATION DES TRAITES (1935) 58, 149. Willoughby apparently takes a similar position. 1 WILLOUGHBY, op. cit. supra note 1, at 528, 579. Another compromise view, similar to Dehousse's theory is advanced by Fairman, loc. cit. supra note 34. See finally, the compromise view of Szaszy referred to supra note 34.

38 This practice is recommended for Great Britain by McNair, op cit. supra note 22, at 67; and for the United States by MATHEWS, op. cit. supra note 1, at 475. Mere expression of approval by the parliament does not, however, operate as law according to Attorneygeneral for Canada v. Attorney-General for Ontario, supra note 22, at 353.

39 If, as in many countries, no special department for the conclusion of treaties exist and the constitution require in certain or all cases the ratification of or approval by the parliament, the situation is not the same; the act of parliament may be a constitutional requirement for the formation of the treaty. Concerning the various constitutional provisions in other countries see THE TREATY-MAKING POWER IN VARIOUS COUNTRIES, ms. U.S. Dept. of State (1919); ARNOLD, TREATY-MAKING PROCEDURE (1933). DEHOUSSE, op. cit. supra note 37, at 124 ff.; DUCRET, LES ATTRIBUTIONS ADMINISTRATIVES DES PARLEMENTS (1935) 58 ff. A special treaty power exists in the United States, Mexico, Ecuador, and Cuba. In many countries the significance of the constitutional provisions requiring acts of parliament is doubtful, as for instance in Belgium. See Muuis, Le traite international et la constitution Belge (1934) 61 REVUE DE DROIT INTERNATIONAL ET DE LEGISL. COMPAREE 451. 40 This position was evidently taken by President Washington in the famous Jay Treaty controversy.1 BUTLER, op. cit. supra note 1, at 426; SERGEANT, op. cit. supra note 1, at 402. The view seems to be generally adopted. Thus Chief Justice Marshall in Foster v. Neilson, supra note 31, held the United States internationally bound to pass an act to execute the treaty. See also Taylor v. Morton (C.C.D. Mass 1855) Fed. Cas. No. 13,799, aff'd (1862) 67 U.S. (2 Bl.) 481; The Over the Top, supra note 30, at 845; 1 BUTLER, op. cit. supra note 1, at 426; 1 KENT. COMM. 286; MATHEWS, op. cit. supra note 1. at 468; RAWLE, op. cit. supra note 1, at 62 ff., 66; SERGEANT, op. cit. supra note 1, at 402: 1 WILLOUGHBY, op. cit. supra note 1, at 579. Contra: TUCKER, op. cit. supra note 1, at 724, in his (Continued)

One may not say that the action is an implied condition under international law, even though it may be made an express one. If Congress does not act the nation is liable for breach of the international covenant even if one takes the view that constitutional limitations on the exercise of the treaty-making power affect the binding force of treaties in international law.*1

A different question, which has been much discussed, is the problem of whether Congress is under a "duty" to pass such a statute. This question, however, must be kept well distinct from the problem of whether the nation is internationally obliged to pass appropriate legislation. This duty of the Congress would be a municipal, a constitutional one, and to that extent the treaty would have a municipal effect, even before Congress acted. The question has given rise to many controversies since the treaty power was first exercised."2 This, however, is of no great importance here, for even assuming one could derive from Article VI a duty of Congress to pass a statute, even the wildest phantasy could not imagine that the President could judicially enforce it by writ of mandamus against each Congressman.

Generally, at least, the courts are called to pass upon the effect and constitutionality of treaties only in so far as their municipal effect is concerned; 43 and for this, they scrutinize extrinsic and intrinsic **

(Continued)

LIMITATIONS ON THE TREATY-MAKING POWER, and in his report of 1887 to the House of Representatives on occasion of the Hawaiian Reciprocity Treaty, cited 1 BUTLER, op. cit. supra note 1, at 439. A dictum to this effect seems to be contained in Turner v. American Baptist Missionary Union, supra note 30, at 344: every foreign government may be presumed to know, that is far as the treaty stipulates to pay money, the legislative sanction is required." The decision stands, however, only for the point that such a treaty is not operative as a municipal act.

It must be emphasized that much confusion is derived from the failure to keep distinct three different questions: (1) Is the treaty internationally binding wihout congressional act: (2) Is the legislative act necessary for its execution; (3) Is the legislature under a constitutional duty to fulfill the international obligation?

41 The law of Great Britain is similar. Cf. Attorney-General for Canada v. AttorneyGeneral for Ontario, supra note 22, at 353, where it is stated that acts of parliament are not required for the formation but only the execution of treaties.

42 This question likewise arose for the first time in the discussion of appropriations necessary to carry into effect the Jay Treaty in 1796. Washington asserted the constitutional duty of Congress to fulfill the treaty obligation. Congress, asserting a liberty to pass or not pass the act, struck out the words "that provision ought to be made by law" and declared merely "the expediency of passing the laws." See Sergeant, op. cit. supra note 1, at 402. This latter view is probably correct in view of the war power of Congress, but it does not affect the validity of the treaty.

The view that Congress has the constitutional discretion to fulfill the treaty obligation or refuse to do so was defended by John Marshall. Cf. 2 Beverage, Life of John Marshall (1919) 135, 136. It is accepted by modern writers. Mathews, op. cit. supra note 1, at 466; 1 Willoughby, op. cit. supra note 1, at 549, 551. Judicial authority for it rests in the case of Turner v. American Baptist Missionary Union, supra note 30, but unfortunately Mr. Justice McLean did not clearly distinguish this problem of the discretion of Congress from the question of the constitutionality of congressional cooperation in the formation of a treaty. Contra: 1 Kent, Comm. 286. In Great Britain Parliament has the discretion to execute a treaty by passing the necessary statute. Cf. Attorney-General for Canada v. Attorney-General for Ontario, loc. cit. supra note 22: "Once [the treaty obligations] are created, while they bind the state as against the other contracting Parties, Parliament may refuse to perform them and so leave the state in default . . . Parliament will either fulfill or not treaty obligations imposed on the state by its executive. The nature of the obligations does not affect the complete authority of the legislature to make them law if it so chooses."

4 Cf. Taylor v. Morton, supra note 40, at 785; "In commencing this inquiry I think it material to observe, that it is solely a question of municipal, as distinguished from public law."

44 The question of the intrinsic limitations on the treaty powers is not well settled. Formerly the Supreme Court apparently took the view that the treaty power is co-extensive with the federal powers granted by the Constitution. See New Orleans v. United States (1836) 35 U.S. (10 Pet.) 662, 736: "The government of the United States . is one of Imited powers. It can exercise authority over no subjects, except those which have been delegated to it. Congress cannot, by legislation, enlarge the federal jurisdiction, nor can it be enlarged under the treaty-making power." But in Missouri v. Holland and Asakura v. Seattle, both supra note 24, the Court took a much broader view. See also the discussions on this topic in Butler, op. cit. supra note 1, and by the American Society of International Law, particularly the observations of the Chief Justice, (1929) 23 Proc. Am. Soc. Int. Law 176: Weinfeld. Are Labor Conditions a Proper Subject of International Conventions? (1936) 24 Calif. L. Rev. 276; Mitchell. op. cit. supra note 1, especially at 151 ff. In the Chinese Exclusion Case (1889) 130 U.S. 581, 609, the Court announced one limitation, namely that the power of exclusion of foreigners cannot be granted away. 32-770-78

17

constitutionality. The international validity of an American engagement is in this respect irrelevant, unless the treaty is not a treaty at all. But what if the validity of the treaty is attacked because of unconstitutionality on the part of the other contracting party? Logically the courts would have to pass on the question. But the ingenious device of "nonjusticiable," or "political" questions has saved the courts the trouble.45

It would seem that Congress has no constitutional voice in the conclusion of treaties. It has only power with respect to their execution. The power to bind the nation internationally by treaties belongs. according to the Constitution, exclusively to the treaty power.

According to international custom, however, not all agreements are treaties, and the American law has adopted this distinction. This phase of the problem will be more fully discussed in connection with the Belmont case.16 There are many cases where the President, upon authorization of Congress, has entered into agreements without the assent of two-thirds of the Senate. Such agreements have been held to be constitutional. The question thus arises whether such authorization is necessary or superfluous. If one take the view that in certain cases the authorization is required, then in these cases, in contrast to regular treaties, Congress may more directly influence the conduct of international relations, its assent being an essential prerequisite for the presidential action in the formation of these agreements.*7

The situation with respect to the powers of the President, Senate and Congress relating to the conclusion of treaties set forth heretofore, aids in understanding the problems arising in connection with the termination of treaties.

A great difference exists between "making" and "termination" by virtue of the fact, mentioned before, that the Constitution is completely silent as to the latter. One could, therefore, put the puzzling question whether this power exists at all in the national government or whether it is possessed by the people of the United States under the 10th amendment. It is evidently clear, however, that by a reasonable construction some department of the federal government must possess the power, and the question is only where does it rest.18

The discussion of the law regarding the conclusion of treaties has shown that it is necessary to distinguish between their international and municipal effects, and the same distinction must also be kept with

45 This doctrine is announced in Doe et al. v. Braden (1853) 57 U.S. (16 How.) 635, 657, where the unconstitutionality of a treaty concluded with the King of Spain according to Spanish law was argued. The court said "But these are political questions and not judicial. The treaty is therefore a law made by the proper authority, and the courts of justice have no right to annul or disregard any of its provisions, unless they violate the Constitution of the United States. And it would be impossible for the executive department of the government to conduct our foreign relations with any advantage to the country. ... if every court in the country was authorized to inquire whether the person who ratified the treaty on behalf of a foreign nation had the power, by its constitution and laws, to make the engagements into which he entered." See Fellows v. Blacksmith (1856) 60 U.S. (19 How.) 366.

46 See text infra, Part 3.

47 Of course, Congress has power to influence the conduct of foreign relations by legislation, which does not require agreements. U.S. Const., Art. 1, § 8, Cl. 3. One could imagine a case, where Congress passes a statute conditioned upon its going into effect upon the passage of a similar or corresponding law by another nation, but this would not constitute an international obligation and would not be an exericse of the treaty-making power. See Taft. op. cit. supra note 5, at 610.

48 That the powers of the federal government with respect to the powers in international relations must be construed broadly, has been constantly emphasized by the Supreme Court. See United States v. Curtiss-Wright Export Corp., supra note 3; Burnet v. Brooks (1933) 288 U.S. 378, 396; Carter v. Carter Coal Co. (1936) 298, 295, and the cases cited therein.

respect to the termination of treaties. So far as municipal effect, i.e., the operation of treaties as "laws", is concerned, it was recognized comparatively early that Congress can override by statute the municipal law as established by staute. "International law is part of the law of the land" is a long-established doctrine," but it has only the binding force of statutes. Rules of municipal law created by the adoption of general (customary) international law can be changed by statute,50 and the same is true with respect to municipal rules created by treaty (conversely, a treaty can override a previous statute).52 The abrogation, internally, of a treaty may be an international wrong, and impose international liability, but the Congressional act is constitutional 53 and valid. The United States courts do not give redress against international wrongs by giving international law a preference over

51

Regardless of the abrogation of the municipal effect of a treaty by an overriding statute the treaty is not abrogated in the international sense. It is breached, not abrogated.55 In the international sphere, the termination of treaties is governed by the rules of international law. There are many reasons by virtue of which a treaty may cease to exist: 56 (1) It may expire ipso facto, because its performance becomes impossible, or there is war,57 or the period for which it was entered into has expired. (2) A treaty can be terminated by the unilateral declaration of one party either because the other party has breached 58 it or because the treaty by its terms provided for termination on denouncement by either party. (3) A treaty can be ended by voluntary recission of both parties on their mutual consent. (4) A treaty can be brought to an end by implication of international law because of a novation or because of

49 This doctrine dates back at least as early as the Grand Opinion for the Prerogative concerning the Royal Family (1717) Fort. 401, 420. 50 Cf. The Nereide (1815) 13 U.S. (9 Cranch) 388, 422 ("Unit such act be passed, the court is bound by the law of nations."); The Marianna Flora (1826) 24 U.S. (11 Wheat.) 1, 39, 40; The Over the Top (D. Conn. 1925) 5 F. (2d) 838, 842.

51 Cf. Taylor v. Morton, supra note 40 (a very careful consideration); The Cherokee Tobacco (1870) 78 U.S. (11 Wall.) 616, 621; Head Money Cases (1884) 112 U.S. 580, 597; Whitney v. Robertson (1888) 124 U.S. 190, 195; The Chinese Exclusion Case (1889) 130 U.S. 581, 600-601; Fong Yue Ting v. United States (1893) 149 U.S. 698; Ward v. Race Horse (1896) 163 U.S. 504, 511; La Abra Silver Mining Co. v. United States (1899) 175 U.S. 423, 460; United States v. Payne (1924) 264 U.S. 446, 448; Cook v. United States (1933) 288 U.S. 102, 120; Pigeon River etc. Co. v. Cox Co., Ltd. (1934) 291 U.S. 138, 160. See also HUGHES, THE SUPREME COURT OF THE UNITED STATES (1928) 115; RAWLE, op. cit. supra note 1, at 61.

52 Foster v. Neilson, supra note 31, at 314; The Cherokee Tobacco, supra note 51, at 621; Whitney v. Robertson, supra note 51, at 194; Cook v. United States, supra note 51, at 118; Techt v. Hughes (1920) 229 N.Y. 222, 246, 128 N.E. 185, 192; RAWLES, op. cit. supra note 1, at 60-61.

53 The power to breach the treaty by contravening legislation may be based upon the war power and the general power to legislate. See Taylor v. Morton, supra note 40; Head Money Cases, supra note 51, at 599.

54 They would apparently apply even foreign laws which violate international law. Shapleigh v. Mier (1936) 299 U.S. 468, 471.

55 This distinction in the decisions is often not clearly observed. It serves no purpose to quote these dicta. The courts usually are concerned only with the internal effect. See Head Money Cases, supra note 51, at 599: so far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass . . . ." The distinction of the text is announced by Pigeon River etc. Co. v. Cox Co., Ltd., supra note 51; Taft, op. cit. supra note 5, at 610; HUGHES, loc. cit. supra note 51, at 115; 1 WILLOUGHBY, op. cit. supra note 1, at 552; Wilson, op. cit. supra note 1, at 466.

50 The reasons for the termination of treaties in international law have not yet exhaustively been investigated. See CAVAGLIERI, op. cit. supra note 27. at 491; 2 HYDE, INTERNATIONAL LAW, CHIEFLY AS INTERPRETED AND APPLIED IN THE UNITED STATES (1922) 79, ff.; McNair, La terminaison el la dissolution des traites (1929) 22 RECUEIL DES COURS DES L'ACADEMIE DE DROIT INTERNATIONAL 459; TOBIN, THE TERMINATION OF MULTIPARTITE TREATIES (1933); Garner and Jobst. The Unilateral Denunciation of Treaties (1935) 29 AM. J. INT. LAW 569; Rohrlich, Self-Release from Treaties (1932) 66 U.S. L REV. 18 ff.; Woolsey, Unilateral Termination of Treaties (1926) 20 AM. J. INT. LAW 346. 57 See Karnuth v. United States (1928) 279 U.S. 231; Tech v, Hughes, supra note 52. 58 Cf. Charlton v. Kelly (1913) 229 U.S. 447.