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While, then, it was within the President's discretion as to whether he would give notice or not, the position actually taken cannot operate to save the country from the charge of failing to observe its international agreements.

Without assuming to decide the extent to which the provisions of the Jones Act, aside from section 34, are in contravention of our commercial treaties (a matter for future judicial determination), and without in any sense affirming the wisdom of these legislative provisions, it remains clear that the act provided a method by which breaches of international obligations might be avoided. This method the President is unwilling to accept. If, then, there be irreconcilable conflict between the substantive provisions of the act and our commercial treaties, the position of the President will result, not in the observance of our treaty obligations, but in their breach. It seems to be within the power of the President to terminate treaties by giving notice on his own motion without previous Congressional or Senatorial action. It would seem, on the other hand, that the President cannot be forced by Congress or by the Senate to perform the international act of giving notice. It is observable, however, that in practice there has previously been no such difference of opinion between the President and Congress as to the termination of treaties so as to result in an impasse ; and that the successful handling of international affairs rests, not so much upon questions of constitutional power, as upon the coöperation of functions and instrumentalities, particularly in those matters having a two-fold aspect, the one international, the other domestic. As there cannot be a clear line of cleavage between the two, or rather as the one class actually or potentially involves the other, coöperation and not separation of functions is necessary.

THE REFUSAL OF THE PRESIDENT TO GIVE NOTICE OF TERMINATION OF CERTAIN TREATY PROVISIONS UNDER

THE JONES ACT

By HOWARD THAYER KINGSBURY
Member of the New York Bar

There has been much discussion, in the public press and elsewhere, of the refusal of the President to give notice, pursuant to Sec. 34 of the Merchant Marine Act of June 5, 1920, of the termination of so much of the treaties with various foreign governments as restricts the right of the United States to impose discriminating customs duties on imports in foreign vessels and discriminatory tonnage dues on foreign vessels entering the United States. So far as this discussion is concerned with the proposed policy of assisting the American merchant marine by thus discriminating against foreign shipping, it is not within the province of this comment to venture an opinion. So far, however, as criticism has been directed against this action of the President upon the ground that in thus failing or refusing to carry out this direction of Congress he has exceeded his constitutional rights, an interesting and important question of constitutional law, affecting international relations, is presented. Much of the criticism is based upon an apparent confusion of thought in regard to the respective functions of the President and Congress in making treaties, terminating treaties, carrying out treaties, and proceeding in contravention of treaties; and also upon a failure to distinguish between the termination of a treaty as a whole and the termination or elimination of a particular provision of a treaty.

There is no dispute that the President negotiates treaties, and enters into them by and with the advice and consent of the Senate. Congress may make recommendations on this subject, but it has neither legal nor actual power to compel the negotiation or making of a treaty. On the other hand, where legislation is necessary to carry out the provisions of a treaty, the President cannot compel Congress to act. In other words, the practical power of refusing to abide by a treaty is necessarily in the hands of Congress. In like manner, Congress may enact legislation inconsistent with an existing treaty, and such legislation is controlling upon all courts and officers of the United States, whatever may be its effect upon the international obligations and responsibilities of the country.

There is also precedent for the termination by Congressional action of a treaty as a whole, either pursuant to a power of termination reserved in the treaty itself or otherwise. Such action is simply notice to the other party that the United States elects to terminate, or refuses longer to recognize any obligations under, the treaty thus abrogated.

The termination of particular provisions of a treaty, however, rests upon a different basis. The abrogation of a treaty as a whole is analogous to the cancellation of a contract; the elimination of certain provisions, while the rest are retained, is the negotiation of a new agreement. One party to a compact may say, “I refuse longer to be bound and our agreement is at an end,” and take the consequences; but he cannot say of right, “I refuse longer to be bound in one respect, but I will abide by and hold you to the remaining obligations," and impose this modified agreement upon the other party. In a treaty, as in any other contract, all of the obligations of one party furnish the consideration for all of the promises of the other, and a mutual obligation on one point, which one party may be ready to waive, may be vital to the other. Therefore the action of Congress in passing Sec. 34 of the Jones Act was equivalent to a direction to the President to negotiate certain treaty modifications; that is to say, to make new treaties. This is beyond the power of Congress.

Congress could have embodied the imposition of discriminatory duties and tonnage dues in the Act, and, while this would have been a breach of existing treaty provisions, it would have been controlling upon the other branches of the government. It could have directed that notice of such action be given to the foreign governments affected, and that the discriminatory duties and dues should become effective at the end of a certain time thereafter. This was the method followed under the La Follette Seamen's Act of March 4, 1915, in regard to the arrest of deserting seamen. In the present case, Congress merely sought to clear the field for undetermined future action, and for this purpose in effect directed the President to procure the consent of the foreign nations adversely affected to the elimination of treaty provisions inconsistent with such freedom of future action, while maintaining in force all the other treaty obligations between the United States and such foreign nations. The President has merely refrained from attempting to negotiate the new treaty relations thus proposed.

It has been suggested that because the President signed the bill he was bound to carry out the directions of Sec. 34. Sec. 36, however, expressly contemplated the possible partial unconstitutionality or invalidity of the Act. Sec. 34 contains no affirmative legislation, but is in essence merely an expression of opinion by Congress as to the expediency of complete freedom of action in regard to certain possible future legislation, and is in no way necessary to the carrying out of the remainder of the Act, which establishes a new system for the regulation of the American merchant marine. It may well be that the President deemed it best that that system be put into operation without delay, and that the whole question of discriminatory duties and dues and their effect upon international relations should be left in abeyance until Congress should determine upon the policy of the nation in this regard and take definite and affirmative action thereon. Why should the area of potential international friction be increased in the manner proposed when it was still possible that Congress might never determine to impose discriminatory duties and dues ?

The basic question is not a new one. It was discussed at length by President

Hayes in his message of March 1, 1879, vetoing a bill directing the abrogation of Articles V and VI of the treaty with China of July 28, 1868, in which he said :

The bill before me does not enjoin upon the President the abrogation of the entire Burlingame treaty, much less of the principal treaty of which it is made the supplement. As the power of modifying an existing treaty, whether by adding or striking out provisions, is a part of the treaty-making power under the Constitution, its exercise is not competent for Congress, nor would the assent of China to this partial abrogation of the treaty make the action of Congress in thus procuring an amendment of a treaty a competent exercise of authority under the Constitution. The importance, however, of this special consideration seems superseded by the principle that a denunciation of a part of a treaty not made by the terms of the treaty itself separable from the rest is a denunciation of the whole treaty. As the other high contracting party has entered into no treaty obligations except such as include the part denounced, the denunciation by one party of the part necessarily liberates the other party from the whole treaty.1

In the present instance, no particular articles or clauses of specified treaties were indicated by the Act. It was left to the President to ascertain them and either to negotiate modifications, which he could not be required to do, or to give notice of termination, which would have operated to abrogate the treaties in their entirety and thus to relieve the other nations of all their obligations thereunder. It is not surprising that the President, in the exercise of his constitutional powers, decided that this was too high a price to pay in order to procure for Congress a liberty of future action of which it might never avail itself.

1 See Crandall, Treaties: Their Making and Enforcement, p. 461, quoting Richardson: Messages and Papers of the Presidents, VII, 518, 519.

THE INTERNATIONAL LABOR ORGANIZATION OF THE

LEAGUE OF NATIONS

BY CHARLES NOBLE GREGORY

Of the Bar of the District of Columbia

On October 29, 1919, the first annual meeting of the International Labor Conference opened at Washington, D. C. It convened pursuant to the invitation of the United States Government authorized by joint resolution of Congress in accordance with and under the provisions of the Versailles Peace Treaty and the League of Nations. The meeting was in some respects embarrassed by the fact that the League of Nations had not yet come into existence, but it nevertheless proceeded, doubtless on the theory that, in the present disjointed times, it is not inappropriate that the creature should precede the creator.

Thirty-nine nations were represented, counting as such, Canada, India and South Africa, which were robustly represented. The scheme of representation was that each sovereignty should send two government delegates and one employers' and one workers' delegate. The delegates were to be attended by technical advisers. Canada had 22 such, Great Britain 16, France 10, and Belgium 18.

The United States, not having adhered to the League of Nations, was not officially a member, but with those of various other nations, not yet members of the League, its representatives were given the privileges of the conference.

Mr. Wilson, Secretary of Labor of the United States, welcomed the conference in the name of President Wilson, and was chosen president. He presided over many of the sessions with conspicuous ability, clarifying and expediting business, observing the courteous and dignified forms proper in parliamentary assemblies, and by fairness, knowledge and firmness, avoided and composed difficulties. He afforded a marked contrast to several less practiced though eminent men, who, from time to time, temporarily took the chair.

Among the delegates and advisers, many persons of official importance were included, as Honorable Gideon D. Robertson, Senator and Minister of Labor, and Honorable Newton W. Rowell, K.C.M.P., President of the Privy Council, of Canada; Rt. Honorable G. N. Barnes, M.P., Member of the War Cabinet, and Sir Malcolm Delevingne, K.C.B., Assistant Under Secretary of State, Home Office, for Great Britain; Mr. A. Fontaine, Director of the Labor Department, Ministry of Labor, for France; Baron Mayor des Planches, Senator and Ambassador, for Italy; and many of like station. Presidents and professors of universities were not wanting, and a number of women were included. The actual attendance was somewhat smaller than the imposing list of delegates and

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