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Inhibitions Upon the Treaty-Making Power of the United States

Published online by Cambridge University Press:  12 April 2017

Pitman B. Potter
Pitman B. Potter*
Affiliation:
Professor of International Organization at the Graduate Institute of International Studies, Geneva
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Extract

On several occasions in the years since 1919 delegates of the United States to international conferences have referred to constitutional arrangements in their country as inhibiting participation by the United States in the conclusion of international agreements of one type or another. Such action raises a problem of great theoretical or pure scientific interest and of great practical importance as well. It has been discussed by various students in the past, but the events or incidents of recent years seem to justify and even demand a reconsideration of the question; it is believed, moreover, that a new basis for solution of the problem can now be indicated which is of greater importance than has been revealed hitherto.

Type
Research Article
Information
American Journal of International Law , Volume 28 , Issue 3 , July 1934 , pp. 456 - 474
Copyright
Copyright © American Society of International Law 1934

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References

1 No attempt has been made to render the following list exhaustive, and other cases of the same type may well have occurred without attracting notice.

2 Similarly, such incidents are known to have occurred prior to 1919, including arguments against ratification of the League Covenant, but did not take exactly the same form or attain the same degree of importance or prominence.

3 Similar utterances have been made within the United States, at Washington and elsewhere, by State Department and White House officials.

4 See C. C. Hyde, International Law, Boston, 1922, §§ 495-509, and bibliography in note 2 to § 497; and article by Q. Wright, cited in note 1 to § 503. 5 Conférence de la Paix, Paris, 1919, Procés-verbaux, rapport et documents de la Commission de la Législation Internationale du Travail, Rome, 1921 (published by Typografia delle Cartiere Centrale for the Ufficio di Segretaria per I'ltalia della Organizzazione Permanante del Lavoro nella Società delle Nazioni); present writer's translation.

5 Conférence de la Paix, Paris, 1919, Procés-verbaux, rapport et documents de la Commission de la Legislation Internationale du Travail, Rome, 1921 (published by Typografia delle Cartiere Centrale for the Ufficio di Segretaria per I'ltalia della Organizzazione Permanante del Lavoro nella Societá delle Nazioni); present writer's translation.

6 Response of the United States, under date of March 8, 1922, to Secretary-General of the League of Nations, in reply to invitation to sign convention of 1921 confirming the convention of 1910.

7 We then said that we regretted our inability “to sign the conventions since some of their provisions pertained to the police functions of the several States of the Union and are therefore outside the competence of the Federal Government“ League of Nations Document C.T.F.E. 542, 1 April, 1932, p. 3.

8 República de Cuba, Diario de la VI Conferencia Americana International, Habana, 1928, p. 92 (translation).

9 United States, Department of State, Report of the Delegates of the United States of America to the Sixth International Conference of American States, Washington, 1928, p. 168.

10 No such action has since been taken.

11 Document cited above, note 9, p. 271.

12 See note in Shotwell, War as an Instrument of National Policy and Its Renunciation in the Pact of Paris, New York, 1929, Appendix II (p. 279).

13 League of Nations Document A.30.1929.IX, being Report of the Special Commission for the Preparation of a Draft Convention with regard to the Supervision of the Private Manufacture … of Arms and Ammunition … , p. 7.

14 Same, p. 29.

15 League of Nations Document C.195.M.74.1929.IX, being Minutes of the Preparatory Commission for the Disarmament Conference, Sixth Session (First Part), Nineteenth Meeting, 3 May, 1929, p. 175.

16 Wilson to Drummond, Aug. 13, 1931.

17 League of Nations Information Section, Press Eelease No. 6755. 18 League of Nations Document C.10M.8.1934.IV, p. 6.

18 League of Nations Document C.10M.8.1934.IV, p. 6.

19 League of Nations Document C.97.M.23.1930.II, being Proceedings of the International Conference on the Treatment of Foreigners, First Session, Fourth Meeting, p. 49; stated in the indirect form.

20 See the case in the minutes of the Bureau of the League of Nations Disarmament Conference, Nov. 18, 1932, p. 100. See also the ambiguous statement made of our attitude toward the Bustamante Code (document cited above, note 9): “The delegation of the United States of America regrets very much that it is unable at the present time to approve the code of Dr. Bustamante, as, in view of the Constitution of the United States of America, the relations among the States members of the Union, and the powers and functions of the Federal Government, it finds it very difficult to do so” (sic); same, p. 167.

21 See below, at p. 464.

22 Above, note 4.

23 See Constitution, Art. I, Sect. 8, clauses 10,11; Art. II, Sect. 2, cl. 2; Art. Ill, Sect. 2, cl. 1; etc.

24 Compare the fact that the constitutions and powers of the States in the United States antedate the Federal Constitution, yet are now held to depend thereon: Ware v. Hylton, 1796, 3 Dall. 199.

25 If such arrangements are left in the status of usages without legal form, the situation is not so serious; if they have taken on binding force, the mere fact that they have not been embodied textually in a constitution is of limited import.

26 See general treatment of the problem, with ample citations to judicial decisions, by the writer in article entitled “Relative Authority of International Law and National Law in the United States,” in this Journal, Vol. 19 (April, 1925), p. 315.

27 Including logical interpretations and developments there of —“the reason of the thing.”

28 Thus the Senate in the United States may refuse approval of a treaty because of belief that it violates the Constitution, or out of a desire not to injure or offend a State; this obviously does not prove anything as to the correct legal theory in the premises.

29 In general; special cases of states pretending to deny to themselves, or promising not to use, part of their treaty-making power, exist: Covenant of the League of Nations, Art. XX; treaty between the United States and Cuba, May 22, 1903, Art. I.

30 See Opium Convention of 1931, Art. 15.

31 See citation in note 11, above.

32 See Crandall, Treaties, Their Making and Enforcement, 2d ed., Washington, 1916, §§ 1-3.

33 In the sense of being given the legal status without which it would have no force.

34 Essentially the situation is no different in a unitary state, especially where the powers of the government are (there) limited and defined by written text

35 This is not true where, the powers of government having been granted by a superior authority to the component units of a governmental system which has, for one reason and another, been given a federal form, so to speak, they have been distributed among the central and provincial governments, as in the Dominion of Canada. Kennedy, W. P. M., The Constitution of Canada, New York, 1922, p. 435, etc.

36 Constitution, Art. I, Sect. 8.

37 Art. II, Sects. 2, 3.

38 Art. Ill, Sect. 2.

39 Amendments, Art. I.

40 Art. I, Sect. 1.

41 Art. II, Sect. 1.

42 Art. Ill, Sect. 1.

43 Art. V.

44 Art. I, Sects. 9, 10.

45 Amendments, Arts. V, XIV.

46 Constitution, Art. VI, IF 2.

47 Wright, Constitutionality of Treaties, as cited above, note 4, p. 251, note 23.

48 Geoffroy v. Riggs, 1890,133 U. S. 258.

49 See the present writer's Manual Digest of Common International Law, New York, 1932, p. 156 (Art. 132 and footnote 132.1).

50 The possibility of defeating the purpose of such an agreement by persistent disagreement on terms, while not necessarily destructive of all meaning and value for such a treaty may be admitted, but such treaties continue to be made; if our conclusions in this study depended upon the mandatory treaty— the treaty which a state is obligated to conclude— we should have to investigate this matter further but, as will appear, they do not. For example of the type of thing involved see League of Nations document, C. 214. No. 70. 1928. II.

51 Otherwise the general problem would simply arise on the earlier stage and the present special problem not arise at all.

52 Potter, Manual, as cited above, note 49, p. 155 (Art. 127 and footnote 127).

53 Reflection will reveal that not only does the national treaty-making power derive from or depend on the authorization of the international community, but also all of the other national governmental powers, including the constituent power (c., reasoning in note 24, above); this does not alter, but, on the contrary would, if we could explore it fully here, re?nforce the conclusion drawn in this paper.

54 Art. I, Sect. 10, cl. 3.

55 The present problem is at times stated as a question whether the world legal system is monistic or dualistic in character (i.e., whether international law is distinct from or integrated with, and takes primacy over, national law), or as a question whether a treaty invalid under national law can be valid under international law. See B. Mirkine-Guetzevitch, Droit Constitutionnel International, Paris, 1933, p. 164. The treatment here given should indicate that all depends upon whether international law has permitted or forbidden the constitutional arrangements, if any, in question; if it has permitted them they are valid and no treaty contravening them is valid, but if it has not, they have no force and a treaty otherwise valid is sound.

56 See utterance in document cited above, note 6.

57 This is now generally admitted; see Hyde, §§ 525, 526.

58 Constitution, Art. VI, cls. 3 and 2 (in that order), e.g.

59 See treatment (believed to be incomplete) of this point by Wright, article cited, pp. 258, 262-263.