¹ Barthélemy, “La crise de la démocratie représentative,” Annuaire de l'Institut International de Droit Public, 1930, p. 43.

² Constitutions may be found in Delpech and Laferrière, Les Constitutions Modernes, 6 vols., Paris, 1928-1934; Mirkine-Guetzévitch, Les Constitutions de l’Europe Nouvelle, Paris, 1930; also his Les Constitutions des Nations Américaines, Paris, 1932. See also Arnold, Treaty-Making Procedure, Oxford, 1933.

³ This includes the 21 American States as well as Afghanistan, Estonia, Liberia, Latvia, Luxemburg, The Netherlands, Persia, Portugal, Rumania, Switzerland, and Turkey. In some countries, however, such as The Netherlands and Switzerland, some exceptions to the rule are admitted in practice. See Arnold, op. cit., pp. 51, 64.

⁴ This number includes all States of importance not mentioned in one of the other groups.

⁵ Ethiopia, Japan and Manchukuo—if Manchukuo may be called a State. Formally, Great Britain must also be placed in this category, although practically her parliamentary system is entirely different.

⁶ For a more complete survey of this question, see Wilcox, The Ratification of International Conventions, London, 1935, pp. 74-100.

⁷ Cf. Nicolai, Der Neuaufbau des Reichs nach dem Reichsreformgesetz vom SO. Januar 1934, Berlin, 1934, p. 33.

⁸ On the question of parliamentary control over foreign affairs, see Pohl, Völkerrecht und Aussenpolilik in der Reichsverfassung, Berlin, 1929, p. 37 ff. See also Schuman, “The Conduct of German Foreign Affairs,” The Annals of the American Academy of Political and Social Science, November, 1934, p. 202 ff.

⁹ The English text of the Weimar Constitution may be found in Martin and George, Representative Modem Constitutions, Los Angeles, 1923, or McBain and Rogers, The New Constitutions of Europe, Garden City, 1922.

¹⁰ A well-known example is the Treaty of Peace (1921) concluded between the United States and Germany.

¹¹ Cf. Anschütz, Die Verfassung des Deutschen Reichs, Berlin, 1932, Vol. 1, p. 262.

¹² For the possibilities of a plebiscite, see Arts. 73, 74 and 76 of the Constitution. See also König, Volksbefragung und Registrierung beim Völfcer6wnd,SLeipsig, 1927, p. 29 ff. A practical case of a treaty submitted to plebiscite does not exist. In December, 1925, a motion was introduced in the Reichstag to postpone the publication of the law consenting to the Locarno Treaties with a view to preparing a plebiscite according to Art. 73 (par. 3) of the Constitution. However, the motion did not obtain the necessary number of votes.

¹³ See, for example, Schmitz, “Die Methode des Abschlusses internationaler Verträge nach deutschem Recht,” Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, Voi. 3, Part I, p. 374 ff.

¹⁴ As far as denunciation was concerned, however, the legislative bodies had no part to play. In Germany the act was given, not by the President, but by the Minister of Foreign Affairs, who announced it in the Reichsgesetzblatt. And although theoretically one might believe that a law can be abrogated only by another law, the Reichstag did not collaborate in the denunciation of treaties, even in those cases where the subject matter of the agreement lay within its legislative competence and therefore depended upon a legislative act for its validity. Cf. Kraus in Handbueh des Deulachen Stooiarechta, Voi. II, p. 344.

¹⁵ According to Art. 10 of the Weimar Constitution, all such treaties had to be published within one month following their adoption by the Reichstag. Publication ordinarily occurred, therefore, at a time when the agreement was not yet binding from an international point of view.

¹⁶ Art. 45, par. 1.

¹⁷ Art. 50.

¹⁸ Paragraphs 2 and 3 of Art. 48 read: “If public safety and order in the German Commonwealth is materially disturbed or endangered, the National President may take the necessary measures to restore public safety and order, and, if necessary, to intervene by force of arms. To this end he may temporarily suspend, in whole or in part, the fundamental rights established in Articles 114, 115,117, 118, 123, 124, and 153.

“The National President must immediately inform the National Assembly of all measures adopted by authority of Paragraphs 1 and 2 of this article. These measures shall be revoked at the demand of the National Assembly."

¹⁹ For a list of the ordinances issued under Art. 48, see Rogers, Schwarz and Kaltchas, “German Political Institutions,” Political Science Quarterly, 1932, p. 583 ff.

²⁰ Among those who deny the power of the President to conclude treaties under Art. 48 are Heilbrunn in the Juriatiache Wochenachrift, 1931, p. 164, and Méttali, “Staoiavertrag und Notverordnung” in Zentralblatt fur die Juriatiache Praxis, 1932, p. 424. Among those who deny the power for the declaration of war and the conclusion of peace are Schade, Archiv für das öffentliche Recht, Neu Folge, Vol. 21, p. 383; Grau in Handbuch des Deutschen Staatsrechts, II, p. 285. Schmitz, op. eil., p. 378, upholds the President’s power in all these cases.

²¹ Reichsgesetzblatt (cited hereafter as RGB.), 1931,1, p. 689.

²² Ibid., 1932,1, p. 121.

²³ Cf. Schmitz, op. cit., p. 375 ff.

²⁴ For instance, the clause “the governments reserve to themselves to apply the accord in a provisional manner from a time to be agreed upon by an exchange of notes.” RGB., 1932, Part II, pp. 199, 215, 219.

²⁵ Thus a decree of the Foreign Minister providing for the application of a treaty with Hungary expressly states that the agreement is applied in a provisional manner “on the ground of an accord” with the other government. See RGB., 1932, II, p. 129.

²⁶ This relatively independent position of the executive power (the same tendency may be found in other States also) results from the obvious necessity of strengthening the government in times of crisis and consequently weakening parliamentary control. In Germany especially, this movement may be regarded as a step in the development from the parliamentary system to the dictatorship.

²⁷ The Reichsgesetzblatt of 1931 contains six such agreements. There were 17 in 1932.

²⁸ See RGB., 1926, II, p. 173; 1927, II, p. 9.

²⁹ See the declaration of the German Government (Ministers of Interior and Justice) cited by Poetsch-Heffter, “Vom Staatsleben unter der Weimarer Verfassung,” Jahrbuch des öffentlichen Rechts, 1929, p. 94 ff.

³⁰ Some authors held that the Kellogg Pact was submitted to the Reichstag because it was an alliance. Cf. Kraus in Handbuch des Deutschen Staatsrechts, Vol. 2, p. 348.

³¹ Schuman’s statement to the effect that “all treaties seem to have been submitted to the Reichstag” is thus somewhat misleading. See Schuman, article cited, p. 207.

³² This distinction should be emphasized. In the United States, executive agreements are frequently concluded by the President without the coöperation of the Senate. Treaties which call for ratification, however, must receive the Senate s consent. In Germany, all treaties concluded by the President were subject to formal ratification although not always requiring the approval of the Reichstag.

³³ Cf. the distinction between solemn and non-solemn treaties made by the German Reichsgericht: R.G.Z. 105, p. 156.

³⁴ See, for example, Schmitz, op. cit., p. 316; also Pohl, op. cit., p. 34.

³⁵ The distinction between solemn and non-solemn treaties was also of some significance as far as publication was concerned. According to Art. 67 of the Gemeinsame Geschäftsordnung der Reichsministerien, treaties concluded with foreign Powers were to be published in the Reichsgesetzblatt. A footnote to the article cited, however, says that mere governmental or administrative agreements are to be published only in the Reichsministerialblatt if no resolution of the legislative bodies prescribed otherwise and if ratification was not required.

³⁶ Cf. Art. 1, sec. 10 of the United States Constitution by which the states are absolutely forbidden to enter into “any treaty, alliance or confederation,” and without the consent of Congress to enter into “any agreement or compact with another State, or with a foreign power.”

³⁷ See Anschütz, op. eit, I, p. 418.

³⁸ See Fleischmann, in Handbuch des Deutschen Staatsrechts, Vol. I, p. 214.

³⁹ Anschütz, op. eit., I, p. 419.

⁴⁰ Cf. Wahl, Die Deutschen Länder in der Aussenpolitik, Stuttgart, 1930, p. 57.

⁴¹ See Bericht und Protokolle des achten Ausschusses der Nationaloersammlung, pp. 34-35.

⁴² Elden in his Die Staatsoerträge Württembergs mit nicktdeutschen Staaten, Berlin, 1926, well illustrates the practical extent of the treaty-making of a German state. According to him, Württemberg concluded, under the Weimar Constitution (up to 1926), some ten agreements concerning border traffic, matters relating to policy in regard to foreigners, traffic on the Bodensee, and school attendance of children of neighboring states. See Eiden, pp. 124-125. For a survey of the treaties of all German Länder recently in force, see Fleischmann, op. cit., p. 214 ff.

⁴³ The break with the principles of the Weimar Constitution has not driven the National Socialist doctrine to a denial of the existence of international law. Indeed, the official doctrine has insisted upon showing the compatibility of the existence of international law and the binding force of treaties with the National Socialist concept of law even though it has rejected the validity of the Versailles Treaty. See, for example, Schmitt, Nationalsozialismus und Völkerrecht, Berlin, 1934, p. 17; Kraus, “Das Zwischenstaatliche Weltbild des Nationalsozialismus," Juristische Wochenschrift, 1933, p. 2418 ff. See also the articles by Wolgast, Rühland and Walz in Zeitschrift für Völkerrecht, 1934, pp. 128-154.

⁴⁴ For the text see RGB., 1933, II, p. 141.

⁴⁵ Text in RGB., 1934,1, p. 747.

⁴⁶ There is an apparent contradiction between Art. 4 of the Enabling Act, which speaks of the bodies participating in legislation, and Art. 45 (par. 3) which speaks only of the Reichstag. This is probably due to the fact that the drafters of the Enabling Act had in mind the practice under the Weimar Constitution of approving treaties by a formal law, that is, with the collaboration of the Reichsrat.

⁴⁷ The term Reichsregierung as used in the Enabling Act does not refer to the minister concerned, but to the cabinet as a whole. (See Kraus, Deutsches Verwalturigsbiatt, 1934, p. 95.) This explanation seems necessary in view of the dispute which arose over the use of the term in certain dispositions of the Weimar Constitution.

⁴⁸ See Schecher, Deutsches Aussenstaatsrecht, Berlin, 1933, p. 38.

⁴⁹ Cf. Meissner, Vollmacht und Ratifikalion bei völkerrechtlichen Verträgen nach Deutschem Recht, Göttingen, 1934, who says that at least theoretically alliances require the Reichstag’s consent. But see also Kraus in Deutsches VerwaUungshtalt, 1934, p. 92, who is of the opinion that alliances need only the consent of the Reich Government.

⁵⁰ The fact that the norm contained in the treaty might contradict the Constitution makes no difference in the procedure, since Art. 2 of the Enabling Act gives the government the right to enact such laws.

⁵¹ See Pfundtner and Neubert in Das neue Deutsche Reichsrecht, note 2 to Art. 4

⁵² See Kraus, Deutsches VerwaltungsUatt, 1934, who holds that Art. 4 gives the Cabinet a special power to issue decrees in these matters distinct from the power to issue laws granted by Art. 1.

⁵³ It is interesting to note that only in the case of the agreement of Feb. 8,1935, between the Governing Commission of the Saar and the German Government, was the text of the agreement approved in the form of a law as it was used for the approval of treaties by the Reichstag under the Weimar Constitution. The action apparently was taken for reasons valid only in this isolated instance. See ROB., 1935, II, p. 53.

⁵⁴ This being true, the question might be raised as to whether or not the President, who has through negotiators concluded the treaty by his own right, would have the right to refuse ratification. This question, which was heatedly debated during past centuries, lost its significance with the advent of constitutional government, but might possibly arise once more with the abolition of legislative control over the chief executive.

⁵⁵ Cf. Meissner, op. cit., p. 54.

⁵⁶ Cf. Wertheimer, “The Third Reich,” Foreign Policy Reports, June, 1934. The author suggests that the consent of the Reichstag might possibly be required in these cases.

⁵⁷ If a special execution law is needed, it is published in the Reichsge&etzblatt (Part I) in the form of an ordinary law.

⁵⁸ Cf. Kraus, Deutsches Verwaltungsblatt, 1934, p. 94; Meissner, op. cit., p. 66.

⁵⁹ See, for example, the agreement with Poland (Jan. 26, 1934) concerning the regulation of political relations between the two countries. RGB., 1934, II, p. 117. On the contrary, the declaration of the Reich Government contained in the exchange of notes between the German and French Foreign Ministers and the President of the Saar Committee for the plebiscite (July 1 and 2, 1934) concerning guarantees for the freedom of the vote was not followed by ratification. See RGB., 1934, II, p. 735.

⁶⁰ An example of the lack of clear distinction which results from Hitler’s functions as both President and Chancellor may be found in practice by the fact that now, in solemn treaties, Hitler as the giver of the full power is designated as Chancellor and not as President. See RGB., 1934, II, p. 1388; 1935, II, pp. 13, 26, 311.

⁶¹ Cf. Meissner, op. cit., p. 67; Kraus, Deutsches Verwaltungsblatt, 1934, p. 93.

⁶² See RGB., 1934,1, p. 89.

⁶³ Ibid., 1933,1, p. 479.

⁶⁴ Pfundtner-Neubert, op. dt., note 2 to par. 3 of the law cited.

⁶⁵ The text of the ballot contained a proclamation of the government with the following question: “Does the German people approve the policy of the government as submitted to it in the proclamation of the Reichsgovemment on October 14,1934, and is it ready to declare it the expression of its own opinion and of its own will and to acknowledge it solemnly as its own?”

⁶⁶ RGB., 1933,1,p. 162.

⁶⁷ For examples see RGB., 1934, II, pp. 17, 25, 57, 93, 99, 160, 817, etc.

⁶⁸ Forty-three of these special agreements appear in the Reichsgesetzblait for 1934 (there were 33 in 1933), while about 20 international agreements of every other type were included. It should be said, however, that not all the treaties concluded in 1934 appear in the Reichsgesetzblatt of that year. Likewise, the treaties published in 1934 were not all concluded during that year.

⁶⁹ For example, a customs agreement signed by Germany and Czechoslovakia in 1933 was modified by a note exchange in January, 1934. This modification provided for application from January to June, 1934. The two agreements were applied provisionally and the first was ratified during 1934 without mention being made of the second. Ratification of the modification agreement apparently did not follow in 1934. Thus during the entire period of its application the second agreement has remained without ratification. See ROB., 1934, II, pp. 25, 351.

⁷⁰ RGB., 1933,1, p. 1531.

⁷¹ RGB., 1934,1, p. 75.

⁷² Cf. Nicolai, Der Neuaufbau des Reichs, p. 55.

⁷³ RGB., 1934,1, p. 81.

⁷⁴ Pfundtner-Neubert, op. eit., note 3 to the decree of Feb. 2,1934; see also Nicolai, op. cit., p. 52.

⁷⁵ For example, see the following agreements: Prussia-Hamburg, RGB., 1934, II, p. 371; Prussia-Saxony, RGB., 1934, II, p. 850; Prusaia-Schaumburg-Lippe, RGB., II, p. 1043; Bavaria-Wurttemberg, RGB., II, 1934, p. 1057; Bavaria-Wurttemberg, RGB., 1935, II, p. 34; Prussia-Hesse, RGB., 1935, II, p. 179; Prussia-Mecklenburg, RGB., 1935, II, p. 304; Prussia-Oldenburg, RGB., 1935, II, p. 371; Prussia-Hamburg, RGB., 1935, II, p. 379.