¹ Holman, Frank E., “Treaty Law-Making: A Blank Check in Writing a New Constitution,” American Bar Association Journal, Vol. 36 (1950), pp. 707-708Google Scholar.

² Holman himself refers to the “initial decisions” of the Supreme Court which held that “a treaty had at least equal force with the Constitution itself.” See Ware v. Hylton, 3 Ball. 199 (U. S. 1796), and other cases cited, Holman, loc. cit., p. 708; also cases and authorities collected by McDougal, Myres S. and Arens, Richard, “The Genocide Convention and the Constitution,” Vanderbilt Law Review, Vol. 3 (1950), pp. 688–692 Google Scholar; and in the statement of Philip B. Perlman, Solicitor General of the United States, The Genocide Convention: Hearings before a Subcommittee of the Committee on Foreign Relations, United States Senate . . . (81st Cong., 2d Sees.) on Executive O . . . (hereinafter referred to as Hearings), pp. 25-26.

³ Carl B. Rix, “Human Rights and International Law,” Proceedings, American Society of International Law, 1949, p. 46, at p. 52.

⁴ 252 U. S. 416 (1920).

⁵ Rix, loc. cit., p. 53.

⁶ American Bar Association: Report of the Committee for Peace and Law Through the United Nations (Sept. 1, 1950), p. 1.

⁷ Section of International and Comparative Law, Proceedings, 1950 : Report of the Committee on Constitutional Aspects of International Agreements, p. 34.

⁸ American Bar Association Journal, Vol. 37 (1951), p. 314. The members of the joint committee were not in agreement as to whether or not the following words in Art. VI, Clause 2, of the Constitution should be repealed: “and all treaties made, or which shall be made under the authority of the United States....” The House of Delegates resolved that the committees concerned should continue joint and separate study of the entire subject.

⁹ Thus Holman asserts: “In all other countries except the United States even after the ratification of a pact or treaty, the state may decide to what extent it will implement the treaty by the passage of national legislation. We are the only country (except possibly France) facing the peculiar legal situation that when a treaty is ratified by our constitutional process—by our Senate—its provisions become a part of the supreme law of the land. ...” “International Proposals Affecting So-Called Human Rights,” Law and Contemporary Problems, Vol. 14, No. 3 (1949), p. 487. See also, for example, Rix, loc. cit., p. 57; Finch, George A., “The Genocide Convention,” American Journal of International Law, Vol. 43 (1949), p. 735 CrossRefGoogle Scholar; Charles S. Rhyne, in American Bar Association Journal, Vol. 36 (1950), p. 377, note 4; and Report of the Committee for Peace and Law . . . (1950), p. 24.

¹⁰ McNair, Arnold D., “When Do British Treaties Involve Ratification!”, British Yearbook of International Law, Vol. 9 (1928), p. 67 Google Scholar.

¹¹ Ibid. See the decision of the Judicial Committee of the Privy Council in Attorney-General for Canada v. Attorney-General for Ontario, [1937] A.C. 326; and, in general, McNair, “L’Application et l’interprétation des traités d’après la jurisprudence britannique,” Becueil des Cours de l’Académie de Droit International, Vol. 43 (1933, I), pp. 253-262; The Law of Treaties: British Practice and Opinions (1938), pp. 7-33; and Balph Arnold (ed.), Treaty-Making Procedure: A Comparative Study of the Methods Obtaining in Different States (1933), pp. 38-40.

¹² Lauterpacht, H., “Is International Law a Part of the Law of England!” Grotius Society, Transactions, 1939, Vol. 25 (1940), p. 74 Google Scholar. Compare the statement of the Assistant Legal Adviser of the Foreign Office, Sandford Fawcett, that: “The United Kingdom has always taken the position that no state should become a party to the Covenant [of Human Bights], by ratification or accession, until the constitutional process is complete by which its municipal law is, where necessary, brought into line.” “A British View of the Covenant, “Law and Contemporary Problems, Vol. 14, No. 3 (1949), p. 444.

¹³ United Nations Treaty Series, II, No. 102, Vol. 15 (1948), p. 374.

¹⁴ 10 & 11 Geo. 6, Ch. 18. See Sec. 1, providing that the Crown may, by Order in Council, make such provision as may be deemed requisite or expedient for carrying out the obligations of the Convention, and, within certain limits laid down in the Act, make punishable any violation of the regulations issued.

¹⁵ United Nations Treaty Series, Vol. 15, p. 296.

¹⁶ Great Britain, Treaty Series (1948), No. 50, p. 499; No. 52, p. 137; No. 53, p. 121; No. 54, p. 153; and No. 55, p. 145, respectively (the page references indicate date of ratification).

¹⁷ 10 & 11 Geo. 6, Ch. 23.

A similar practice with respect to treaties requiring for their application in the United Kingdom that the Crown should receive some new powers not already possessed by it was followed at the close of World War I. The relation between the dates of the passing of the enabling Acts and the deposit of ratifications is shown in the following summary: “Versailles deposited on Jan. 10, 1920, Act passed on July 31, 1919; St. Germain deposited on July 16, 1920, Act passed on April 27, 1920; Neuilly deposited on Aug. 9, 1920, Act passed on April 27, 1920; Trianon deposited on July 26, 1921, Act passed on May 12, 1921; Lausanne deposited on Aug. 6, 1924, Act passed on April 15, 1924.” McNair, The Law of Treaties, p. 22, note 4.

¹⁸ In force Oct. 27, 1946. Journal officiel (Oct. 28, 1946), Supp. No. 27. The English text published in Amos J. Peaslee, Constitutions of Nations, “Vol. II (1950), p. 8, at p. 12, contains an essential error in the translation of Art. 27. Unless otherwise indicated, all translations are by the writer.

¹⁹ Quoted in Mouskhély, Michel, “Le traité et la loi dans les système constitutionnel français de 1946,” Zeitschrift für ausländisches öffentliches Hecht und Völkerrecht, Vol. 13 (1950), pp. 110–111 Google Scholar.

²⁰ See, in general, Mouskhély, op. cit., pp. 98-117; Boueseau, Ch., “Le régime actuel de conclusion des traités en France,” La technique et les principes du droit public-Études en l’honneur de Georges Scelle, Vol. II (1950), pp. 565–584 Google Scholar; and Preuss, Lawrence, “The Relation of International Law to Internal Law in the French Constitutional System,” American Journal of International Law, Vol. 44 (1950), pp. 641–669 CrossRefGoogle Scholar.

France is not, as is commonly alleged, the sole unitary state whose constitution expressly provides for self-executing treaties. The Report of the Committee for Peace Through Law . . . Appendix A (based on Peaslee, Constitutions of Nations), in citing the procedural provisions on treaty-making in the constitutions of Paraguay and Korea, omits any reference to the following provisions:

²¹ See Art. 60, Constitution of the Kingdom of The Netherlands (Fundamental Law of Aug. 24, 1815; reissued with amendments, Jan. 22, 1947, ibid., p. 513, at p. 519), which has been construed to mean that treaties which may affect private rights shall be ratified by the Crown only if they have been approved by the States-General. On the position of self-executing treaties in the Dutch constitutional system, see Paul De Visscher, De la conclusion des traités internationaux (1943), pp. 96-101; Van der Pot, C. W., Handboek van het Nederlandsche Staatsrecht (2d ed., 1946), pp. 151–155 Google Scholar; Kranenburg, R., Het Nederlandsche Staatsrecht (2d. ed., 1947), pp. 417–423 Google Scholar; and François, J. P. A., Handboek van het Volkenrecht, Vol. I (1931), pp. 319–322 Google Scholar.

²² See Telders, B. M., “Le droit des gens dans la jurisprudence des Pays-Bas,” Bulletin de l’Institut Juridique International, Vol. 25 (1936), p. 3 Google Scholar, and cases there cited. The exceptional case was the decision of the Hooge Rad of Jan. 12, 1858, in which it was held that a treaty of extradition was solely a contract between the parties and without force of law (non-self-executing).

²³ X. v. Pastini-Cyrus, Weekblad van het Recht, No. 8383; French text in De Visscher, op. cit., p. 100, and in Journal de droit international privé, Vol. 35 (1908), p. 1278 (with comment). J. H. W. Verzijl asserts that this “governmental and judicial thesis, according to which a treaty is immediately binding upon the Courts and the subject without the necessity of any further transformation into municipal law, has given rise to much discussion on constitutional doctrine, but has never been superseded either by judicial or by governmental practice.” Annual Digest of Public International Law Oases, 1931-1932, doctrinal note, p. 354. See Public Prosecutor v. J. V., Cantonal Court of Amsterdam (Aug. 11, 1932), ibid., loc. cit.; and Schurmann, C. W. A., in Grotius Society, Transactions, 1944, Vol. 30 (1945), p. 36 Google Scholar.

²⁴ Art. 68, par. 2, Constitution of Feb. 7, 1831 (with amendments). Peaslee, Constitutions of Nations, Vol. I, p. 127, at p. 136.

²⁵ See De Visscher, op. cit., pp. 42-50; and Rolin, Henri, in Grotius Society, Transactions, 1944, Vol. 30 (1945), p. 32 Google Scholar. The function of the Parliament is merely one of “homologation” or “habilitation,” and the King remains free to ratify or not to ratify a treaty which it has approved. Its approval, therefore, has the same effect as the “advice and consent” of the Senate of the United States to the ratification of a treaty ; once given, the President may use his discretion as to whether or not ratification shall follow. If the treaty is ratified, if it is of a nature which renders it susceptible of direct application by the judicial and other authorities of the state, and if it was intended to be operative internally without enabling legislation subsequent to ratification, it is, in both countries, a “self-executing” treaty.

²⁶ Nisot, Joseph, “La conclusion et l’exécution des traités internationaux envisagées par rapport État belge,” Mélanges offerts à Ernest Mohaim, Vol. II (1935), p. 234 Google Scholar, and, in general, pp. 228-237.

In its decision of May 20, 1916, the Court of Cassation held that the conventions signed at the Hague Conference of 1907 were self-executing, since they were submitted by the Belgian Government to Parliament with that intent, and since the single article of the law of May 25, 1910, in approving the conventions and authorizing their ratification, ordered that “these conventions and declarations shall have their full and complete effects.” The court concluded that the treaty at issue, “clothed with the assent of the Chambers and promulgated in Belgium, has, therefore, the force of law, and must for this reason (á ce titre) be applied by the tribunals.” The law of approval, “at the same time that it constitutes the assent of the Chambers to the treaty, contains the formal order that this treaty shall have in Belgium full and complete effect. “Procureur général près la Cour d’Appel de Liège v. Marteaux ... et al., Pasicrisie Belge (1915-1916), Pt. I, p. 376, at pp. 417, 418.

²⁷ Decision of Sept. 21, 1932, Journal des Tribunaux (1932), p. 633; quoted, De Visscher, op. cit., p. 48.

Several Latin-American countries recognize self-executing treaties as the supreme law of the land, and even apply them in derogation of later legislation, although their constitutions contain no express provisions to this effect. Thus, the Supreme Court of Colombia in its decision of June 13, 1925, held that “. . . it is a principle of public law that the Constitution and public treaties are the supreme law of the land and their provisions prevail over ordinary legislation which is in conflict, even if the legislation. is of later date.” Quoted by Gibson, William M., “International Law and Colombian Constitutionalism: A Note on Monism,” American Journal of International Law, Vol. 36 (1942), p. 619 CrossRefGoogle Scholar, note 18. See also decision of May 11, 1944, Gaceta Judicial, Vol. 57, p. 613; Annual Digest and Reports of Public International Law Cases, 1943-1945, p. 238. In its decision of May 11, 1944, the Supreme Court of Panama likewise held that a self-executing treaty prevailed over a later law. Registro Judicial, Vol. 29, p. 487; Annual Digest of Public International Law Cases, 1931-1932, p. 12. Also, decision of the Supreme Court of Guatemala, March 31, 1937, Annual Digest and Reports of Public International Law Cases, 1935-1937, p. 10. For like decisions by the courts of Brazil, see Valladåo, H., in Boletin da Sociedade Brasileira de Dereito Internacional (1946, No. 3), p. 10 Google Scholar.

²⁸ Peaslee, Constitutions of Nations, Vol. II, p. 279 ; Gazzetta Ufficiale, No. 298, Dec. 27, 1947.

²⁹ Arrigo Cavaglieri, doctrinal note, Annual Digest of Public International Law Oases, 1923-1924, p. 320.

³⁰ Angelo P. Sereni, The Italian Conception of International Law (1943), p. 323. This result is, of course, excluded by Art. 80 of the new Constitution.

³¹ Sereni, op. cit., pp. 322-324. The order, as Sereni points out, “differs from the usual legislative acts, because it does not expressly indicate the rights and duties, powers and burdens, which it creates, but only indirectly by reference to the annexed treaty. The order of execution creates all the rules of Italian law necessary to produce within the scope of the domestic legislation the results desired by the treaty to which it refers; it abrogates all the pre-existing provisions which are incompatible with it. The domestic legislation is so completely adapted to the treaty.” A later law inconsistent by its express terms with an earlier treaty was given effect by the courts under the former constitution. See Kopelmanas, Lazare, “Du conflit entre le traité international et la loi interne,” Revue de droit international et de législation comparée, Vol. 64 (1937), pp. 100–101 Google Scholar. It has been suggested that the effect of Art. 10(1) of the new Constitution, which provides that “The Italian juridical system conforms to the generally recognized principles of international law,” is to make treaties prevail over later laws. See Vedovato, Giuseppe, “I rapporti intemazionali dello Stato,” in Calamandrei, P. and Levi, A. (eds.), Commentario sistematico alla Costituzione Italiana, Vol. I (1950), pp. 88–93 Google Scholar, and especially p. 90.

On the self-executing nature of treaties in Italy, see De Marco v. Waren Handelsgesellschaft, May 5, 1924, Annual Digest of Public International Law Cases, 1923-1924, p. 320, in which the Court of Cassation stated: “Once an international treaty has been approved in the ways laid down by the fundamental law of the State, it has the force of law and may be invoked by private persons independently of any provision of the Government, with the exception only of those parts which by their nature or by the express provisions of the Treaty need some such provision in order to be enforceable.” Also, Chini v. Société Guerlain et al., Court of Cassation, Feb. 12, 1935, Annual Digest and Reports of Public International Law Cases, 1935-1937, p. 436.

³² Raccolta ufficiale delle Leggi et dei Decreti . . . (1949-11), No. 385, p. 1019. Art. 2(2) contains the standard formula: “E’ fatto obbligo a chiunque spetti di osservarla e di farla osservare come legge dello Stato.”

³³ U. S. Department of State, Treaties and Other International Acts Series, No. 1965.

³⁴ Raccolta Ufficiale . . . (1949-III), No. 433, p. 1223. Art. 3 provides for the election of the Italian representatives in the Consultative Assembly, and Art. 5 for payment of Italy’s financial contribution to the expenses of the Council.

³⁵ Great Britain, Treaty Series (1949), No. 51, p. 19.

³⁶ Report of the Committee for Peace and Law . . . (1950), p. 9. See Art. 22, Constitution of the Argentine Republic, March 16, 1949 (Peaslee, Constitutions of Nations, Vol. I, p. 63, at p. 65), and, for the distinction between self-executing and non-self-executing treaties in Argentine constitutional practice: Montero v. Fernández, Camera de Apelaciones de la Plata, June 3, 1938, Annual Digest and Reports of Public International Law Cases, 1938-1940, p. 472; and Alonso v. Haras “Los Cardos” S.A., Supreme Court, March 15, 1940, ibid., p. 474. See Art. 133, Political Constitution of the United States of Mexico, Jan. 13, 1917 (Peaslee, op. cit., Vol. II, p. 415, at p. 459).

³⁷ Reply of the Government of Switzerland, Jan. 25, 1929, League of Nations, Conference for the Codification of International Law . . . Bases of Discussion . . . Vol. III.—Responsibility of States . . . (C.75.M.69.1929.V), pp. 239, 243-244. See Art. 175(3) and Art. 189(4), Federal Law on the Federal Judicial Organization, March 22, 1893 (Z. Giacometti, Das öffentliches Recht der Schweizerischen Eidgenossenschaft (2d ed., 1938), p. 215, at pp. 239, 242).

³⁸ League of Nations doc. cited supra, note 37.

³⁹ Z. Giacometti, Schweizerisches Bundesstaatsrecht (1949, new ed. of F. Fleiner’s work of the same name), p. 829. The writer continues: “The automatic legal operation of law-making treaties results from the very nature of Art. 113(3) of the Federal Constitution, whereby treaties approved by the Federal Assembly [in conformity with Art. 85(5)] are also binding on the Federal Tribunal.” Article 113(3) provides: “The Federal Tribunal has also jurisdiction in regard to . . . Complaints ... by individuals in respect of violation of concordats or treaties.” (Peaslee, Constitutions of Nations, Vol. III, p. 122, at p. 144.) See also Guggenheim, Paul, Lehrbuch des Völkerrechts: Unter Berücksichtigung der internationalen und schweizerischen Praxis, Vol. I (1947), pp. 34–35 Google Scholar.

⁴⁰ Lepeschkin v. Zürich Obergericht, Feb. 2, 1923, Entscheidungen des Schweizerischen Bundesgerichts, Vol. 49, Pt. I (1923), pp. 188, 195-196; Annual Digest of Public International Law Cases, 1923-1924, p. 323. De Visscher, op. cit., p. 122, makes the following comment on this case: “It appears vain to seek whether this doctrine espouses the monist theory or the dualist theory. In any event it would appear difficult to speak here of a transformation of the treaty into a law, since it is one and the same act which creates simultaneously the treaty and the law, and since the former cannot exist without the latter.”

⁴¹ i Department of State Publication 3526 (June, 1949).

The constitutions of the Länder of the American, French (with one exception) and Soviet zones all contain provisions that the “general” or the “generally recognized” rules of international law shall be an integral part of the law of the Land, and shall be binding upon the state and each individual citizen. See Constitutions of the German Laender, prepared by the Civil Administration Division, Office of Military Government (U. S.), 1947; and Preuss, Lawrence, “International Law in the Constitutions of the Länder in the American Zone in Germany,” American Journal of International Law, Vol. 41 (1947), pp. 888–899 CrossRefGoogle Scholar. The constitutions of Hesse and of the Saar provide expressly that treaties as well as the general rules of international law shall be an integral part of the law of the Land, and, further, that they shall prevail over conflicting legislation. The Lander retain a limited treaty-making power, Art. 32(3) of the Bonn Constitution providing that: “In so far as the Laender are competent to legislate, they may, with the approval of the Federal Government, conclude treaties with foreign states.”

Art. 5(1) of the Constitution of the German Democratic [People’s] Republic provides that: “Generally recognized principles of international law shall be binding upon the sovereign state and its citizens.”

⁴² Munch, Fritz, “Droit international et droit interne d’après la Constitution de Bonn,” Revue internationale française du droit des gens, Vol. 19 (1950), p. 14 Google Scholar, and, in general, pp. 5-20.

⁴³ As to the relative validity of federal legislation and treaties, see Munch, op. cit., pp. 18-19. Under the Empire and the Weimar Republic, the German courts, like those of the United States, attributed to treaties the force of a federal statute and, applying the principle lex posterior derogat priori, gave effect to the most recent act. See the decision of the Reichsgericht, March 2, 1933, Entscheidungen des Reichsgerichts in Strafsachen, Vol. 67, p. 130; Annual Digest and Beports of Public International Law Gases, 1933-1934, p. 11.

Art. 31 of the Bonn Constitution provides, as did Art. 13(1) of the Weimar Constitution, that: “Federal law shall supersede Land law.”

⁴⁴ Art. 59(2) of the Bonn Constitution.

⁴⁵ Walz, Gustav A., Völkerrecht und Staatliches Rechi: Untersuchungen über die Einwirkungen des Völkerrechts auf das innerstaatliches Recht (1933), p. 376 Google Scholar. The writer further states : “ . . .If the treaty is validly perfected according to international law and enters into force, then its binding character is at the same time automatically extended to citizens and officials, in so far as it concerns a self-executing treaty, since the legislative branch has already conferred its sanction by means of a federal law. After the condition which is presupposed by the law of approval, namely, the entry of the treaty into force internationally, has been fulfilled, the full and normal operation of a law [Gesetz] takes place.” Ibid., p. 375. See decision of the Reichsgericht, Feb. 9, 1931, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, Vol. 3, Pt. II (1933), p. 147 (with comment by Mandelsloh); Annual Digest of Public International Law Cases, 1931-1932, p. 351.

⁴⁶ 2 Pet. 253, 314 (1829).

⁴⁷ Decision of March 29, 1928, Entscheidungen, des Reichsgerichts in Zivilsachen, Vol. 121, p. 7, at p. 9; Annual Digest of Public International Law Cases, 1927-1928, p. 408. See also the decisions of June 18, 1927, RGZ, Vol. 117, p. 284; Nov. 29, 1927, ibid., Vol. 119, p. 156; and May 17, 1927, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, Vol. 1, Pt. II (1929), p. 190.

⁴⁸ Rousseau, Charles, Principes généraux du droit international public, Vol. 1 (1944), p. 392 Google Scholar.

⁴⁹ ”International Law by Analogy,” American Journal of International Law, Vol. 45 (1951), p. 331. Also Lauterpacht, loc. cit. (note 12, supra), p. 79. This is the evident meaning of the oft-quoted passage in Taylor et al. v. Morton, 2 Curtis 454 ; 23 Fed. Cas. 784, 785, in which it is asserted that: “The foreign sovereign between whom and the United States a treaty has been made has a right to expect and require its stipulations to be kept with scrupulous good faith; but through what internal arrangements this shall be done is exclusively for the consideration of the United States. Whether the treaty shall itself be the rule of action of the people as well as the government, whether the power to enforce and apply it shall reside in one department, or another, neither the treaty itself, nor any implication drawn from it, gives him any right to inquire. If the people of the United States were to repeal so much of their constitution as makes treaties part of their municipal law, no foreign sovereign with whom a treaty exists could justly complain, for it is not a matter with which he has any concern.”

⁵⁰ Holman, loc. cit. (note 1, supra), p. 708; also loc. cit. (note 9, supra), p. 487; and Ransom, William L., “International Legislation and the American System,” Tulane-Law Review, Vol. 22 (1947-1948), p. 552 Google Scholar. Compare the statement of Secretary of State Charles Evans Hughes, Feb. 19, 1923: “... a judicial determination that an act of Congress is to prevail over a treaty does not relieve the Government of the United States of the obligations esablished by a treaty. The distinction is often ignored between a rule of domestic law which . . . may be inconsistent with an existing Treaty, and the international obligation which a Treaty establishes. When this obligation is not performed a claim will inevitably be made to which the existence of merely domestic legislation does not constitute a defense ...” Quoted in Hackworth, Digest of International Law, Vol. 5, p. 194.

⁵¹ Report . . . (1950), p. 24. In support of this extraordinary assertion the Committee quotes (and completely misinterprets) a passage from McNair, The Law of Treaties, p. 35, in which the author, while expressly affirming the obligation of a contracting state to bring its internal law into conformity with its treaty obligations, observes that failure to do so “does not, however, strictly speaking, in itself give rise to a right of complaint on the part of the other party. A right to complain only arises when the treaty is actually broken by some act which is based on the municipal law in question instead of being based on the treaty provision and is incompatible with the latter.” Reference is here made to the Panama Canal Tolls controversy of 1912-1913 with the United States, in which the British Government considered that it had “certainly a political, and probably a legal, right to protest in advance against the threatened violation “ of its treaty rights by legislation inconsistent therewith, but not yet applied. Also ibid., p. 228. President Wilson, in his address to Congress requesting repeal of the offending legislation, clearly stated the issue as follows: “... We consented to the treaty; . . . and we are too big, too powerful, too self-respecting a nation to interpret with too strained or refined a reading the words of our own promises just because we have power enough to give us leave to read them as we please. The large thing to do is the only thing we can afford to do, a voluntary withdrawal from a position everywhere questioned and misunderstood.” Quoted in Hackworth, op. cit., Vol. 5, p. 164.

The important distinction which is ignored in the above-cited assertion of the Committee is made with utmost clarity in a statement by the Swiss Government: “. . . It is not failure to enact a law which involves the responsibility of a State, but rather the fact that this State is not in a position, by any means, to fulfil its international obligations. It therefore follows that, even in the absence of a law by which the State could immediately fulfil its obligations, we will not be confronted with a fact or act contrary to international law unless some circumstance arises by which the rights of other States are prejudiced.” Doc. cited (supra, note 37), p. 238.

⁵² But this would furnish a basis for arguing, not that Art. VI, Cl. 2, of the Constitution be amended, but that Art. II, Sec. 2, be so amended as to provide that the President shall have the power to make treaties, “provided a majority of the Senators and Representatives present concur.” See, e.g., H. J. Res. 6, 78th Cong., 1st Sess., and similar proposed amendments in Amendment to Constitution Relative to the Making of Treaties: Hearings before Subcommittee No. 3 of the Committee on the Judiciary, House of Representatives (78th Cong., 2d Sess., 1944). Such an amendment would not alter the legal position of treaties made self-executing by operation of Art. VI, Cl. 2, and, in committing Congress in advance of ratification to the prompt legislative implementation of non-self-executing treaties, would tend to raise other states to a “plane of equality” with the United States.

⁵³ The attempt to retain an absolute discretion as to the internal execution of treaties duly ratified and in force internationally is illustrated in the questions addressed by Senator Bourke B. Hickenlooper to the Solicitor General of the United States with regard to the effect of the Genocide Convention. See Hearings, pp. 31-37. The Senator’s confusion is apparent from the following colloquy:

“Senator Hickenlooper. The convention, as it is contemplated, is in effect self-executing because it binds us to pass laws implementing it. The discretion as to whether or not we pass laws is taken away from us. We agree and are bound by the provisions of the convention to pass laws. Therefore to that extent it is self-executing. . . .

“Mr. Perlman. Senator, that has not been considered to be a self-executing provision.”

See also Carl B. Rix, loc. cit. (note 3, supra), p. 52.

The objection to the attempted “legalization” or “constitutionalization” of the repudiation of treaty obligations contained in the Constitutional amendment proposed in the 1950 Report of the Committee for Peace and Law (p. 84, supra) would not be equally applicable to the standard reservation proposed by the Joint Committee at the meeting of the American Bar Association in February, 1951 (p. 84, supra). The latter would, however, have the effect of practically relieving the United States of any legal obligation under multilateral treaties in social and economic areas, especially if it were combined with a federal-state clause. It appears doubtful that such a reservation would be acceptable to other signatories or contracting parties. The result would be to impose a virtual incapacity, and hence inequality, upon the United States in the international regulation of social and economic problems.

⁵⁴ Mr. Rayard to Mr. Connery, Nov. 1, 1887, Moore, Digest of International Law, Vol. 2, p. 235. See the cases and authorities collected in the Reply of the Government of the United States, May 22, 1929, League of Nations, Conference for the Codification of International Law . . . Bases of Discussion . . . Vol. III, Supp.—Responsibility of States . . . (C.75(a).M.69.129.V), pp. 6-8; Hackworth, Digest of International Law, Vol. 1, pp. 24-39; Vol. 5, pp. 164-167, 194-197; Draft Convention on the Law of Treaties, with Comment, Harvard Research in International Law, American Journal of International Law, Supp., Vol. 29 (1935), Pt. III, pp. 977-992, 1029-1044; and Arnold, op. cit. (note 11, supra), pp. 4-9, 14-16.

⁵⁵ Opinion relative to the Exchange of Greek and Turkish Populations, Feb. 21, 1925, Publications of the Court, Series B, No. 10, p. 20. In its opinion on the Jurisdiction of the Courts of Danzig, March 3, 1928, ibid., No. 15, the Court considered that the international agreement at issue was intended by the contracting parties to establish “definite rules creating individual rights and obligations and enforceable in the national courts” (p. 17), and rejected the contention of the Polish Government that the Danzig courts could not apply its provisions because they were “not duly inserted in the Polish national law....” The Court observed that “at any rate, Poland could not avail herself of an objection which, according to the construction placed upon the Beamtenabkommen by the Court, would amount to relying upon the non-fulfilment of an obligation imposed upon her by an international engagement” (p. 26).

⁵⁶ Edwin D. Dickinson, Law and Peace (1951), pp. 137, 139, and, in general, pp. 134-144.

⁵⁷ Grundlinien der Philosophie des Rechts, p. 330, quoted by H. Lauterpacht, The Function of Law in the International Community (1933), p. 270.

⁵⁸ Elihu Root, speech in the U. S. Senate on the Panama Canal Tolls controversy, May 21, 1914, Addresses on International Subjects (ed. by R. Bacon and J. B. Scott, 1916), p. 297.