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

42

advisers would indicate. At the second session, 87 delegates were present, and at the closing session, November 29th, 90 were recorded.

The Peace Treaty delegated to the United States the tasks of convening and organizing the conference. The organizing committee was presided over by M. Fontaine of France, and the United States was represented thereon, first, by Dr. J. T. Shotwell, of Columbia University, and then by Mr. Samuel Gompers. Delegates were entitled to speak in their own language, provided they furnished a French and English translation of their remarks, French and English being the official languages of the conference. Viscount de Eza, a delegate for Spain, desired that Spanish be made official also. Though this was not done, the proceedings were every night translated into and printed in Spanish.

The conference after debate and in anticipation of their admission to the League of Nations, admitted Germany and Austria to membership on equal terms.

It is impossible to summarize the debates, often stirring and eloquent, and sometimes radical, but more generally, to the credit of the delegates be it said, reasonable, businesslike and informing.

The result of a month's session was that the agenda was quite faithfully carried out, and this resulted in the adoption

First, of a convention limiting the hours of work in industrial undertakings to eight in the day and forty-eight in the week (with certain exceptions). The convention defined the term "industrial" so as to include mines, quarries, manufacturing, repairing, building and repairing railroads, telephone viaducts, and, in general, transport of passengers and of goods; but left the questions of transport by sea and inland waterways to be determined by a special conference, and the authorities of each country to define the line separating industry from commerce and agriculture, after declining to include agriculture in the limitation. As illustrating the difficulties to be met in the latter line, the question was raised whether the manufacture of crude sugar on a sugar plantation was to be classed as "industry" or "agriculture," that being the prerequisite to marketing the cane juice in any way; and a like question arose as to felling timber. Certain excess of hours was allowed in special circumstances and in continuous processes. Modifications of the general rule were allowed in Japan, where 57 to 60 hours per week were permitted for persons over fifteen years of age, a weekly rest period of twenty-four hours being required, but these requirements were to come into force only on July 1, 1922, and certain ones not until July 1, 1923. This was as great a reduction in hours of work from those at present observed in Japan, as the eight-hour day for Europe and America. In British India, a sixty-hour a week limitation was adopted for all workers covered by the factory act, and China, Persia and Siam were exempted from the terms of the convention. Elaborate exceptions were provided for Greece. Second, as to unemployment, the course recommended was

1st. The establishment by each nation of free public employment agencies under central authority, to be advised and coördinated in certain ways.

2nd. Where countries have insurance against unemployment, provision to be made for admitting workers who are within the territory of the insuring

country but are from other countries which are members of the labor organization, to the benefits of such insurance.

3rd. It was also recommended that the charging of fees by employment agencies be forbidden.

4th. That recruiting of bodies of workers in one country to be employed in another be permitted only by mutual agreement between the countries concerned. 5th. Also that there be established insurance against unemployment, either by government or private organization with government subventions.

6th. Also that public work be, as far as practicable, reserved for periods of unemployment.

7th. As to foreign workers, a system of international reciprocity was advised in admission to benefit of laws and regulations protecting workers, and in making organization lawful.

Third, as to the employment of women in industrial or commercial undertakings before or after childbirth, a convention was adopted that they be not permitted to work during six weeks after childbirth and may leave work on a medical certificate that confinement will probably take place within six weeks. During such absence a woman must be paid sufficient for full and healthy maintenance of herself and child either from public funds or by a system of insurance. While she is nursing her child, a worker must be allowed half an hour twice a day, during working hours, for that purpose. It will be observed that these provisions are in no way limited to married women.

Fourth, the employment of women during the night, that is from ten P.M. to five A.M., was forbidden, but various exceptions were allowed.

Fifth, regulations for prevention of anthrax were recommended by disinfecting wool affected in the exporting country or at the port of entry.

Sixth, it was also recommended that women and persons under eighteen be excluded from certain employments in which there is danger of lead poisoning, and only be employed with certain precautions where lead compounds are used. Seventh, the establishment of government health services was recommended, this including factory inspection and service for safeguarding the health of workers.

Eighth, by convention, it was provided that employment of children under fourteen in industrial undertakings be forbidden, but with exceptions, especially as to Japan and India.

Ninth, by convention, young persons under eighteen years were forbidden to be employed in the night in industrial undertakings, with certain exceptions; as to persons over sixteen years, again with exceptions as to Japan and India. Tenth, adherence to the conventions adopted at Berne in 1906 prohibiting the use of white phosphorus in the manufacture of matches was recommended.

There were considerable debates and conflicting views as to various matters. The aspiration of workers in all countries to enjoy the leisure of Saturday "afternoons" was expressed by M. Jouhaux of France, and the reduction of the weekly hours of labor to forty-four was considered, but not agreed to, though evidently it is "in the offing." A motion by Mr. Baldesi of Italy to amend the draft convention as to hours of labor, so as to prevent any decrease of wages