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One may conclude, then, that the Constitution would bar some mala fide use of the form of a treaty, in conspiracy with a foreign power, for the sole purpose or making domestic law in the United States—whether to exclude the House of Representatives or to invade the reserved jurisdiction of the states. Assume the l'resident (and Senate) wish to establish a uniform divorce law in the United States; a friendly foreign government agrees to help by entering into a “treaty” with the United States establishing a divorce law for this country. It would be simple in that case to declare the label of treaty a sham, to disregard the formalities of treaty-making, and to declare that "treaty” inoperative as law in the United States. Such a hypothetical conspiracy apart, it is difficult to imagine the circumstances in which the United States and one or more nations would negotiate and conclude a treaty that does not concern them both, that does not involve the foreign relations of the United Staies, and that does not serve its foreign policy." Hughes' concern, and Jefferson's, then, may be largely academic. Surely, there is no warrant for extending and distorting the constitutional doctrine they suggest merely to render it less academic and make it a serious limitation.
In any event, Hughes' doubts about a treaty on private international law in 1928 or 1929 have little relevance for human rights conventions today. What is of international concern, what affects American foreign relations and is relevant to American foreign policy, what matters the United States wishes to negotiate about, differ from generation to generation, perhaps from year to year, with the ererchanging character of relations between nations. If there is a constitutional requirement that a treaty deal with a matter of "international concern,” that it be an act of American foreign policy in the conduct of American foreign relations, surely human rights conventions today amply satisfy that requirement. Minimum standards of international behavior with regard to human rights were a matter of international concern and involved American foreign relations long before the US Charter expressly so provided. Questions of human rights, and the desirability of international legislation of minimum standards, are issues of foreign policy facing all nations today. None of them is asserting that it is not an appropriate subject for international agreement. For the United States such agreements are not "sham" treaties contrived by the President to distort our constitutional system of separation of powers, or to take additional matters from the jurisdiction of the states into the federal domain.64 As in all bona fide treaties, their purpose, from the point of view of the United States, is a foreign relations purpose to influence behavior of other countries which affects the welfare of this country. The concern of the United States is not wholly moral or humanitarian. This country would like to see minimum standards observed in other countries in order to safeguard our own standards and to promote conditions that are conducive to American prosperity and American interests in international peace and security. To achieve those aims, and to give the United States the right to request compliance with those standards, the United States is prepared to pay the price of undertaking to apply similar standards at home and to recognize the right of other nations to demand American compliance.
It should be clear, moreover, that nothing in the requirement that a treaty deal with a matter of “international concern,” or that it “affect American foreign relations,” bars an agreement in which the United States undertakes obligations to other states as to how it will treat its own inhabitants :
62 Even the case that inspired Hughes' concern hardly affords a realistic example. Theoretically, his principle might bar treaties which develop "uniform laws' where neither the United States nor the other party has any substantial interest in whether or not their countries have such uniform laws. But even if nations should bother to have their experts join to develop those uni.orm laws, they would hardly incorporate such laws in a treaty unless they had some foreign policy interest in common standards, in binding other nations to these standards, and were willing to bind themselves in exchange. But see note 63 infra. For a discussion of some different kinds of concerns that may lead nations to negotiate a treaty or include a particular provision, see Niagara Reservation 1164-69.
63 The agreement that troubled Hughes affords an interesting instance. Whatever might have been the case in 1928, I am confident that today a treaty providing for uniform principles of private international law in regard to cases of conflicts of law between nations would be a valid treaty dealing with a matter of international concern. In recent years the United States has adhered to the Hague Conference on Private International Law. Today, principles of conflicts of law between nations are probably subject to federal, not state, law, precisely because they affect the foreign relations of the United States. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 425–26 (1964); Henkin, The Foreign Affairs Power of the Federal Courts: Sabbatino, 64 Colum. L. Rev. 805, 820–21 n.51 (1964).
64 In most respects, at least, the subjects with which such treaties generally deal are already in the federal domain, and do not make new law, but only confirm what is already federal law. See note 66 infra.
[I]t has always been clear that international agreements, like private contracts, may be parallel as well as reciprocal. Parties may bind themselves to do, or not to do, for each other; or, nation may undertake to do or not to do, in its own land and to its own people, in consideration of a similar undertaking by the other party. ..
Such agreements are not entirely recent phenomena. ... In fact, the United States, like other nations, has itself negotiated treaties and other international agreements which regulate acts of the Government in regard to its own citizens. The United States adhered to ILO Conventions establishing labor standards which this country would apply to Americans. It agreed to control raw and manufactured opium and other drugs within the United States. It agreed to apply to its own vessels accepted load lines and common standards for safety at sea. It agreed not to bring to trial an American soldier if he had been tried for the same offense by the courts of an allied NATO country. It agreed with other nations to limit its taxes on American citizens. And the United States has agreed to limit its own armaments; it continues to strive for far-reaching controls on arms and armies which would impose strict limitations on activities by Americans within the United States; it sought, for years, agreement for the control of atomic energy which would have governed strictly many domestic activities by Americans in the United
States. 65 The foreign relations aspects of these “parallel" agreements are obvious, and the international character of human rights conventions should be equally apparent. An international convention fixing high labor standards for a nation's own inhabitants, adopted by the nations with whom the United States competes in the sale of manufactured goods in world markets, would have a greater impact on American foreign trade, and be of far greater "international concern” to this country, than any “parallel” treaty formulating common shipping standards and restrictions. To recognize that even human rights may be matters of authentic restrictions concern, one need only think of apartheid in South Africa, of recent events in communist countries, in Nigeria, in India and Pakistan, in Cyprus, and of other actual or potential situations where the treatment of individuals or minority groups is intimately related to war and peace among nations.®
. Basically, the question is not whether the United States should legislate 05 Law of the Land 911-12 (footnotes omitted).
Opponents or human rights conventions have also invoked Power Authority V. FPC, 247 F.2d 538 (D.C. Cir.), vacated as moot, sub nom. American Pub. Power Ass'n v. Power Authority, 355 U.S. 64 (1957). That case, I believe, was wrong y decided. See Niagara Reservation, passim. in any event, it has no relevance to our question. That case head a Senate reservation to a treaty with Canada, providing that the treaty would not go into effect in the United States until Congress adopted legislation, did not have the effect of law in the United States since it was not part of the contract with Canada. Tuat case suggests that only provisions that are “contractual,” i.e., part of the agreement with the foreign nation, can be law of the land. Nothing in that case suggests any limitations on the kinds of provisions that can be made subject of a contract with other nations. In a human rights convention, the provisions are “contractual," imposing obligations upon the parties.
The majority opinion in the case adopted the views of Professor Jessup, counsel for the Power Authority in the case, and author of a legal memorandum published earlier on the same issues. Professor Jessup has leen one of the leading exponents of the position which would have the individual a subject of international law, and has expressly favored multilateral conventions to promote human rights. P. Jessup, A Modern Law of Nations 87-93 (1948).
88 Even minor agreements have a foreign relations purpose. In 1963 President Kennedy asked the advice and consent of the Senate to three United Nations conventions dealing with the abolition of slavery, the abolition of forced labor, and the enforcement of political rights of women. He said :
United States law is, of course, already in conformity with these conventions, and ratification would not require any change in our domestic legislation. However, the fact that our Constitution already assures us of these rights does not entitle us to stand aloof from documents which project our own heritage on an international scale, The day-to-day unfolding of events makes it ever clearer that our own welfare is interrelated with the rights and freedoms assured the peoples of other nations.
These conventions deal with human rights which may not yet be secure in other countries ; they have provided models for the drafters of constitutions and laws in newly independent nations; and they have influenced the policies of governments preparing to accede to them. Thus, they involve current problems in many countries.
They will stand as a sharp reminder of world opinion to all who may seek to violate the human rights they define. They also serve as a continuous commitment to respect these rights. There is no society so advanced that it no longer needs periodic recommitment to human rights.
The United States cannot afford to renounce responsibility for support of the very
fundamentals which distinguish our concept of government from all forms of tyranny. Hearings on Human Rights Conventions Before a Subcomm. of the Senate Comm. on Foreign Relations, 90th Cong., 1st Sess. 40 (1967).
for its own citizens by treaty, or should submit actions in the United States to the scrutiny of other nations. Rather, the question is whether the United States, concerned with the treatment of individuals in other countries and its effect on international peace and security, may seek to regulate such treatment, and thinks it worth the necessary price-agreement to subject actions in this country to similar international or foreign scrutiny.
To suggest that human rights conventions are not of "international concern” or do not "affect American foreign relations” requires some special and narrow restriction of the natural meaning of those phrases. It necessitates a new doctrine holding that a treaty must affect American foreign relations in a particular way, that it further only certain kinds of foreign relations interests, and further them only in specific ways. I know of no basis for any such limitation on the treaty power : Jefferson did not suggest it; Hughes' remarks have no suspicion of it; none of the dicta of the Court states or implies it. No one during the Bricker controversy, on either side, ever intimated it; indeed, such a constitutional doctrine would have made Senator Bricker's struggles to amend the Constitution largely unnecessary, legally as well as politically. Most important, there is no basis for any such limitation on the treaty power in the only possible foundation for any such limitation—the requirement that a treaty be a bona fide agreement in pursuit of foreign policy objectives.
Perhaps some of the misunderstanding of “international concern” and “relation to American foreign policy” has resulted because some have confused that doctrine with the very different concept of "domestic jurisdiction.” In part, responsibility for this confusion may be traced to the original Circular 175,97 promulgated by Secretary of State Dulles apparently in an effort to console the Bricker forces after the defeat of their efforts to amend the Constitution. The Circular—an instruction to the State Department-provided :
Treaties should be designed to promote United States interests by securing action by foreign governments in a way deemed advantageous to the United States. Treaties are not to be used as a device for the purpose of effecting internal social changes or to try to circumvent the constitutional procedures
established in relation to what are essentially matters of domestic concern.60 The Circular, it should be noted, announced policy, not constitutional doctrine. Indeed, it was probably designed to impose as policy what the Bricker Amendment would have imposed as constitutional law, but which, it was realized, was not the law of the Constitution unamended.“ Still, the final clause of the Circular has apparently led some to argue that the Constitution precludes American adherence to any treaty that deals with matters "that are essentially within the domestic jurisdiction of the United States.” 71
Whatever its intellectual origins, the argument reflects fundamental misconceptions. The concept of "domestic jurisdiction” is unknown to American constitutional doctrine; it is well known to international law.”2 Under international law, a matter is deemed to be within country's domestic jurisdiction if it is not governed by international law or by any treaty obligation.*3 What is within the
87 U.S. Dep’t of State, Dep't Cir. No. 175 (1955), reprinted in 50 Am. J. Int'l L. 784 (1956). 88 For other reassurances to the Brickerites, see Law of the Land 934-35 n. 66.
89 U.S. Dep't of State, Dep't Cir. No. 115 at 2 (1955). The Circular, in turn, echoes remarks made by Dulles two years earlier during the hearings on the Bricker Amendment. See Hearings on S.J. Res. 1 and S.J. Res. 43 Before a Subcomm, of the Senate Comm. on the Judiciary, 83d Cong. 1st Sess. 824–25 (1953). The circular has since been revised and the quoted language eliminated.
10 In fact, when President Kennedy in 1963 sent three minor human rights conventions to the Senate, see note 66 supra, it did eventually consent to one of them. 113 Cong. Rec. 1575051 (daily ed. Nov. 2, 1967) (consent to convention on abolition of slavery).
1 American Bar Association, Report of the Standing Committee on Peace and Law Through United Nations: Human Rights Conventions and Recommendations, 1 Int'l Law. 600, 601 (1967). Note that the Circular, supra note 69, speaks of domestic concern,” not of "domestic jurisdiction.” The latter has became a term of art in international law; the former has not. See notes 72–74 infra and accompanying text. The Circular may have intended to use "comestic concern in contradisdinction to Hughes' “international concern." I fact, this is a misleading play on words. “Domestic concern” and “international concern" are not closed, exclusive categories. To say that something is essentially a matter of domestic concern may te merely a way of expressing a determination not to negotiate about it. But what is essentially a matter of “domestic concern” becomes a matter of "international concern" if nations do, in fact, decide to bargain about it. See note 75 infra.
72 Compare U.N. Charter art. 2para. 7, with Declaration on the Part of the United States. 61 Stat. 1218 (1946), T.I.A.S. No. 1598 (promulgated Aug. 14, 1946), in which the United States accepted, with reservations, compulsory jurisdiction of the International Court of Justice under I.C.J. Stat. art 36, para. 2. One of the stipulated exceptions related to “.
disputes with regard to matters which are essentially within the domestic jurisdiction of the United States of America as determined by the United States of America.
" Declaration on the Part of the United States, supra. 73 See. e.g., Declaration on the Part of the United States, 61 Stat. 1218 (1946), T.I.A.S. No. 1598 (promulgated Aug. 14, 1946).
domestic jurisdiction of a country in the absence of treaty ceases to be 'so when that nation enters an international agreement on the subject. To suggest that the Constitution forbids treaties as to matters that are "essentially within the domestic jurisdiction of the United States," is to bar any treaty on any matter not already governed by customary international law or previous agreement. Such a theory would prevent the United States from participating in the development of new law by multilateral convention-the principal form of international legislation today. It would preclude many provisions in treaties of commerce, friendship and navigation, in treaties on disa rmament, extradition, nationality the prevention of double taxation and a host of other subjects. It seems patently absurd.“ In any event, it is a limitation which no one has suggested before and which is without foundation. It cannot be implied in Hughes' “international concern" limitation, nor can it be derived from the character and purpose of the treaty power as an instrument of foreign relations; it has no support even in early writings on the Constitution; and it is contradicted by the history of American treaty practice. In the absence of treaty, this country's armaments, its nationality laws, its immigration policies, all lie within its "domestic jurisdiction;" yet the United States has negotiated agreements on these subjects of international concern from the beginning of its history to this day.
Today, human rights are of deep “international concern”; they have an important place in the foreign relations of the United States. Human rights in other countries have become, ineluctably, this country's business. It has repeatedly joined with other nations to condemn invasions of human rights in communist countries as well as in South Africa. For the United States to insist that a nation's treatment of its own inhabitants is not of international concern would itself have grievous impact on American foreign relations with Asian and African countries. The state of human rights in the United States, in turn, is sharply scrutinized by others, and our domestic human rights policies are developed with at least one eye and one ear to the world outside. For decades now, “in the ordinary intercourse of nations," human rights have "been made subjects of negotiation and treaty.” Surely, the Constitution does not prohibit the United States from negotiating and adhering to such treaties.
Beneath the “neo-Bricker" doctrine that would deny the United States the power to adhere to such treaties lies, perhaps, the view that the United States should not be negotiating with other nations on "internal matters,” whether those of South Africa, Russia, Hitler's Germany, Castro's Cuba, or the United States. That is a view of foreign relations which this country rejected almost 100 years ago. Today such a foreign policy is impossible, even were it desirable. The United States cannot avoid involvement in such “internal affairs" of other countries and it cannot keep other nations out of ours. The price of international influence and concern is reciprocity. Indeed, the price of United States leadership in world affairs may involve our own "internal affairs” in our foreign relations even more than
ernal affairs" of others. Constitutional interpretation has, for more than thirty years, favored the broadest construction of the power to govern. The Supreme Court long ago recognized that where power is granted it may be exercised to the fullest. No court today would say that the commerce power is limited to matters which affect commerce in one particular way or to a limited degree; indeed, it has been extended farther than ever to support new departures in human rights legislation in the United States. The spending power has emerged as a principal instrument for promoting general welfare, including much that comes within contemporary conceptions of human rights." A hundred years after its adoption, the fourteenth amendment is being read to warrant novel and far-reaching legislation to promote human rights in the United States. It is difficult to believe that any court would insist on a more grudging and niggardly view of the treaty power in order to prohibit American participation in human rights conventions. It is difficult to believe that any court would find that the Constitution renders the United States impotent to do what all other nations can do-participate in one of the major developments of international life in the last half-century. It is difficult to believe that any court would find in the Constitution a requirement that treaties deal with matters of “international concern,” or “affect the foreign relations” of the United States, in some special narrow sense unrelated to the realities of international intercourse today.
it See Advisory Opinion on Nationality Decrees Issued in Tunis and Morocco, (1923) P.C.I.J. ser. B, No. 4.
75 The authors of this argument might insist that they are using "domestic jurisdiction" in some special sense. I do not know what it is. It would seem that they are trying by this phrase to read back into the Constitution the notion that a treaty mar not deal with a "local matter"-a notion long rejected and finally demolished in Missouri v. Holland. The point is that the concept of "domestic jurisdiction" is irrelevant to the constitutional question whether an agreement relates to our foreign relations and has some foreign policy purpose.
70 E.g., Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964); Katzenbach v. McClung, 379 U.S. 294 (1964).
77 Sce, e.g., Steward Mach. Co. v. Davis, 301 U.S. 548 (1937).
There is room for difference about the desirability or effectiveness of international human rights covenants, or of American participation in such covenants. There is, however, no excuse for lawyers to fabricate constitutional doctrine to confuse the issue. Almost ten years ago, in the pages of this Review, I wrote:
Many will have deep sympathy for those who dream of old days thought good, or better; who yearn for decentralization even in foreign affairs and matters of international concern, for limitations on federal power, for increase in the importance of the States; who thrill to a wild, poignant, romantic wish to turn back all the clocks, to unlearn the learnings, until the atom is unsplit, weapons unforged, oceans unnarrowed, the Civil War unfought. The wishy remains idle, and the effort to diminish power in is area for fear that it may not be used wisely is quixotic, if not suicidal. It is not the moment to attempt it when all ability, flexibility, wisdom are needed for cooperation for survival by a frightened race, on a diminishing earth, reach
ing the moon.79 The lesson is more urgent than ever; it is yet to be learned.
The CHAIRMAN. Senator Proxmire, thank you very much, indeed.
You and I have been characterized and portrayed in some accounts as secretly plotting to "sneak” the Genocide Convention through the Senate at tħe end of this session when no one really is looking.
Now we have used the end of sessions together on occasion, at Christmastime. We found it a very appropriate time to debate at length some measures that would have rushed through: the SST or the ABM. I think we found it propitious at that time to speak at length, and we found our brethren anxious to get home.
Do you believe there is any procedure in the Senate that would allow you or me to plot to slip this through the Senate sometime when no one is looking ?
Senator PROXMIRE. No way. I am sure, Mr. Chairman, that you are aware of the fact that the treaty would require, of course, a two-thirds vote of our full body. There may have been a time some years ago when a treaty was passed without a rollcall vote. But certainly, with the very strong opposition of the distinguished Senator from North Carolina and the Senator from South Carolina, who is the chairman of the Judiciary Committee, who expressed themselves this morning, I know this treaty will be discussed and debated in full—and I do mean in full. We are going to have an up and down vote on it.
There is no question about it. There is no way this is going to be sneaked through. Indeed, there is no intention on the part of anybody to do it. We couldn't do it, even if we wanted to.
The CHAIRMAN. I don't want to be personal about this, but I do think we should look at the kind of campaign that is going to be used against the issue. We have seen it in the past, and we see evidence of it again.
78 E.g., Katzenbach v. Morgan, 384 U.S. 641 (1966). See also United States v. Guest, 383 U.S. 745 (1966),
79 Law of the Land 936.