ment" 85 and was therefore "the usurpation of a power belonging to to the U.S. Senate alone." 86 Argento contended that the only way in which the treaty could be revived was through action by the Senate of the United States. Judge Connell recognized the "ingenious" character of the challenge but invoked the well-known doctrine of the "political question" in order to avoid passing upon the specific issue raised. He said: ... for this court to hold that such treaty does not exist at all Judge Connell's opinion was based upon the assumption that the war had not abrogated the extradition treaty but had only suspended its operation. He continued: There is little or nothing in the twelve phases of international relationships aforementioned between these two countries which could be said to be so incompatible with war as to justify a judicial determination that this treaty was abrogated; and it was most desirable that such relationships be immediately resumed and that the original status of the parties in these twelve respects be quickly re-established. Such resumption of such status did not require the specific approval of the U.S. Senate because the decision thus made to resume relationships was political in its nature and with propriety was so determined by the political department of our government. The U.S. Senate approved them all originally; war then made it physically impossible for their continuity but war had no intrinsic incompatibility toward the relationship itself. The only decision herein made was that such relationship be resumed, revived and kept in force since the physical reason for its discontinuance had ended.88 The crux of the opinion is the assumption by the court that the extradition treaty was not abrogated by the state of war between the U.S. and Italy. In affirming, the circuit court covered approximately the same ground that had been covered by Judge Connell." The court held that "the treaty of extradition between the United States and Italy was not terminated but merely suspended during the war and that it is now in effect." 90 The court also placed primary emphasis upon the action of the political departments: Counsel have cited us to no decision, and we have found none, specifically relating to the effect of war upon a treaty of extradition. Such a treaty does not conveniently fit into either of the alternative classifications set out in the Karnuth opinion quoted above. If the question were to be decided in a vacuum, the conclusion could only be that it is extremely doubtful that war ipso facto abrogates a treaty of extradition. Fortunately, however the question need not be so decided, but can and must be decided against the background of the actual conduct of the two nations involved, acting through the political branches of their governments.91 93 If the treaty had been terminated by the war, the contention of the realtor, Argento, would have been valid. However, under the present law as determined by the Supreme Court in Terlinden v. Ames 2 and Charlton v. Kelly, an executive declaration respecting the status of a treaty cannot be successfully challenged in the courts. In the present cases, the district court declared the action of the State Department in delivering notification to the Italian Government in accordance with the provisions of the treaty of Peace "was not only entitled to great weight but so much so as to constrain us to consider it determinative of the question before us." 94 The circuit court opinion was more cautious in dealing with this facet of the question.95 Although not expressly mentioned by Judge Connell, the position of the executive branch was seemingly made impregnable by the fact that the Senate had given its express approval to the procedure followed by the Department of State when it advised and consented to the ratification of the Treaty of Peace with Italy. On this point, the circuit court observed: The consumation of the treaty of peace with Italy in 1947 containing Article 44 providing for "notification" by the United States of each prewar bilateral treaty it desired to keep in force or revive, the ratification of that treaty by the United States Senate, the subsequent notification by our State Department with regard to the extradition treaty, and the conduct of the political departments of the two nations in the ensuing nine years, evidencing their unqualified understanding that the extradition treaty is in full force and effect, all make it obvious that the political departments of the two governments considered the extradition treaty not abrogated but merely suspended during hostilities." The Argento case 97 added to the developing case law on the subject of the effect of war on treaties. The most important case relating to this subject and the most important court decision relating directly to the termination of treaties during the period emphasized in this o Id. at 263. 1 Id. at 262. 82 184 U.S. 270, 288 (1902). 93 229 U.S. 447. 475 (1913). 4 131 F. Supp. 538, 542 (1955). See 241 F.2d 258, 263 (1957). $67, at 262. See supra note 82. study is Clark v. Allen.98 The case dealt with the effect of war on a bilateral treaty, the Treaty of Friendship, Commerce and Consular Rights of 1923 between the United States and Germany.99 The question of the effect of war on treaties is a most complex and controversial one, a question of international law on which there is very wide disagreement.100 Although the opinion of the court did not bring order out of chaos in the international realm, it definitely placed the Supreme Court's stamp of approval on the American trend toward minimizing the effect of war on bilateral treaty obligations. 101 The Supreme Court had spoken on this question on two previous occasions.102 A dictum by Justice Bushrod Washington in Society v. New Haven established a precedent for the present practice. In discussing the effect of the War of 1812 upon Article VI of the Treaty of Peace with England of 1783,103 he asserted: But we are not inclined to admit the doctrine urged at the bar, that treaties become extinguished ipso facto, by war between the two governments, unless they should be revived by an expressed or implied renewal on the return of peace. Whatever may be the latitude of doctrine laid down by elementary writers on the law of nations, dealing in general terms, in relation to this subject, we are satisfied, that the doctrine contended for is not universally true. There may be treaties of such a nature, as to their object and import, as that war will put an end to them; but where treaties contemplate a permanent arrangement of territorial and other national rights, or which, in their terms, are meant to provide for the event of an intervening war, it would be against every principle of just interpretation, to hold them extinguished by the event of war.... We think, therefore, that treaties stipulating for permanent rights, and general arrangements, and professing to aim at perpetuity, and to deal with the case of war as well as peace, do not cease on the occurrence of war, but are, at most, only suspended while it lasts; and unless they are waived by the parties, or new and repugnant stipulations made, they revive in their operations at the return of peace.104 In 1929, after the lapse of more than a century, the Court once more had an opportunity to pass upon the issue.105 Although the Court, speaking through the Justice Sutherland, was careful to reconcile its opinion with the previous pronouncement by Justice Washington,106 it nevertheless held Article III of the Jay Treaty of 1794 107 98 331 U.S. 503 (1947). 99 44 Stat. 2132 (1927). 100 Harvard Law School, supra note 6, 1183-1203; Lenoir, Effect of War on Bilateral Treaties. 34 Geo. L.J. 129 (1945): McDonald. supra note 2; Castel, International Law: Effect of War on Bilateral Treaties: Comparative Studies, 51 Mich. L. Rev. 556 (1953): Karnuth v. United States, 279 U.S. 231, 236 (1929). 101 For recent comments by the Department of State with respect to the question of the effect of war on the termination of treaties, see U.S. Dep't of State, Law of Treaties as Applied by the Government of the United States of America 201ff, (unpublished, Mar. 31, 1950); cf. Hackworth, op. cit. supra note 3, at 377-90. 102 Society v. New Haven, 8 Wheat. 464, 494 (1823); Karnuth v. United States, 279 U.S. 231 (1929). 103 8 Stat. 80, 83 (1783). 104 Society v. New Haven, 8 Wheat. 464, 494 (1823). 105 Karnuth v. United States, 279 U.S. 231, 239 (1929). 106 Ibid. 107 8 Stat. 116, 117, art. III (1794): "It is agreed that it shall at all times be free to his Majesty's subjects, and to the citizens of the United States, and also to the Indians dwelling on either side of the said boundary line, freely to pass and repass by land or inland navigation, into the respective territories, and countries of the two parties, on the continent of America. . . to have been abrogated by the War of 1812. The finding of the Court was based on the conclusion that an open frontier was incompatible with a state of war. The relevant portion of Justice Sutherland's opinion is as follows: ". . . the passing and repassing of citizens or subjects of one sovereignty into the territory of another is inconsistent with the condition of hostility." 108 The specific issue before the Court in Clark v. Allen was the question as to whether the outbreak of World War II had abrogated the reciprocal inheritance provisions of the Treaty of Friendship, Commerce, and Consular Rights between the United States and Germany.109 The facts of the case may be summarized briefly. Alvina Wagner, a resident of California, died in 1942, requeathing her estate to nationals and residents of Germany to the exclusion of California heirsat-law. The right of the German heirs to inherit depended upon the status of the reciprocal inheritance provisions of the treaty of Friendship, Commerce and Consular Rights with Germany.110 Subsequently, in 1943, the alien property custodian "vested in himself all right, title and interest of the German nationals in the estate of this decedent" and instituted proceedings in the district court against the executor of the estate and the California heirs-atlaw for "a determination that they had no interest in the estate and that he was entitled to the entire net estate, after payment of administration and other expenses." The district court ruled in favor of the Alien Property Custodian.111 The circuit court reversed on the ground that the district court was without jurisdiction.112 The Supreme Court granted certiorari, held that the district court had jurisdiction, and remanded the case to the court of appeals for consideration on the merits.113 On the merits, the circuit court held for respondent's holding that the treaty provisions had been abrogated.114 The case came to the Supreme Court for a second time.115 Although the Supreme Court was passing upon the effect of the outbreak of war upon a reciprocal inheritance provision in a bilateral treaty for the first time, the question had previously been passed upon on more than one occasion by a state supreme court, the leading case being Techt v. Hughes.116 In each instance, the court had held that the treaty provision had survived the outbreak of war. The Techt opinion was particularly esteemed because it had been written by Benjamin Cardozo, later to be numbered among the most respected justices of the Supreme Court. As a matter of fact, the Supreme Court, speaking through Justice Douglas, incorporated the heart of the Techt opinion and endowed it with the sanctity of the supreme law of the land, Justice Douglas asserted: We start from the premise that the outbreak of war does not necessarily suspend or abrogate treaty provisions. 111 Crowley v. Allen, 52 F. Supp. 850 (1943). 113 Allen v. Markham, 147 F. 2d 136 (1945). 113 Markham v. Allen, 326 U.S. 490 (1946). 114 Allen v. Markham, 156 F. 2d 653 (1946). ... There 115 A complete statement of the facts appears at 331 U.S. 503, 505 (1947). 116 229 N.Y. 222. 128 N.E. 185 (1920); see also Goos v. Brocks. 117 Neb. 750, 223 N.W. 13 (1929): State v. Reardon, 120 Kan., 614, 245 P. 158 (1926). For a similar subsequent opinion, see In re Meyers Estate. 107 Cal. App. 799, 238 P. 2d 597 (1951) and discussion in Lesser, Treaty Provisions Dealing with Bilateral Treaties, 51 Mich. L. Rev. 573 (1953). may of course be such an incompatibility between a particular treaty provision and the maintenance of a state of war as to make clear that it should not be enforced. . . . Or the Chief Executive or the Congress may have formulated a national policy quite inconsistent with the enforcement of a treaty in whole or in part. This was the view stated in Techt v. Hughes, and we believe it to be the correct one: . . . "The question is not what states may do after war has supervened, and this without breach of their duty as members of the society of nations. The question is what are to presume that they have done. . . . President and Senate may denounce the treaty, and thus terminate its life. Congress may enact an inconsistent rule, which will control the action of the courts. The treaty of peace itself may set up new relations, and terminate earlier compacts either tacitly or expressly. . . . But until some one of these things is done, until some one of these events occurs, while war is still flagrant, and the will of the political departments of the government unrevealed, the courts, as I view their function, play a humbler and more cautious part. It is not for them to denounce treaties generaly, en bloc. Their part it is, as one provision or another is involved in some actual controversy between them, to determine whether alone or by force of connection with an inseparable scheme, the provision is inconsistent with the policy or safety of the nation in the emergency of war, and hence presumably intended to be limited to times of peace. The mere fact that other portions of the treaty are suspended or even abrogated is not conclusive. The treaty does not fall in its entirety unless it has the character of an indivisible act.117 The language of the Court supports two conclusions which appear to sum up the municipal law of the United States with respect to the question of the effect of war on bilateral treaties. (1) The politicial departments of the government may determine in the first instance whether a treaty has been abrogated by the outbreak of war, and the courts will be bound by the political decision.118 (2) In the absence of an expressed declaration or the adoption of an ascertainable policy to the contrary by the political departments of the government, the Court will not consider the provisions of a bilateral treaty to have been abrogated by the outbreak of war except where the enforcement of the treaty provisions would be detrimental to the national interest or otherwise incompatible with a state of war.119 In summary, it may be said that the problem of terminating international agreements in the United States is four dimensional. First, all international agreements must be terminated in accordance with the norms of general international law, as well as in accordance with the internal or municipal law. Secondly, the municipal law of the United States recognizes two distinct types of international agreements, treaties and executive agreements. Practice demonstrates that 117 331 U.S. 503, 508 (1947). 118 The cited portion of the Techt opinion stipulated denunciation by the President and Senate, but it is clear that denunciation could be accomplished by any one of the five methods set forth on p.. supra. 119 Divergence between United States and foreign practice is treated by MacDonald, supra note 2; Castel, supra note 100. |