dreamed of by the constitutional fathers (or by Taney), including the Charter of the United Nations and the Nuclear Test Ban Treaty. Jefferson's assertion might mean that the United States cannot negotiate a new kind of treaty. It would not prevent the United States from entering into a treaty of a kind it has never negotiated, after other nations "had" begun "usually" to negotiate about it. Such a constitutional doctrine makes little sense for the country we have become, but it would not, in fact, bar the United States from negotiating with other nations on human rights; nations have been "usually" regulating human rights by treaty at least since the "minorities treaties" of a half-century ago, in the UN Charter, in the various regional human rights arrangements now in effect, and in the human rights covenants that have been under negotiation for almost twenty years under the auspices of the United Nations.62 We are left, then, with Jefferson's first limitation—that a treaty "must concern the foreign nation, party to the contract." Jefferson apparently saw this as an inherent characteristic of a treaty, a characteristic which the Constitution incorporated when it spoke of "Treaties." It is not clear what this limitation meant for him, what would be its practical consequences, what kinds of acts or arrangements it would preclude. Perhaps this limitation approximates the one expressed more recently in the now famous remarks made in 1929 by Charles Evans Hughes, erstwhile Secretary of State and already designated Chief Justice of the United States: What is the power to make a treaty? What is the object of So I come back to the suggestion I made at the start, that this is a sovereign nation; from my point of view the nation has the power to make any agreement whatever in a constitutional manner that relates to the conduct of our international relations, unless there can be found some express prohibition in the Constitution, and I am not aware of any which would in any way detract from the power as I have defined it in connection with our relations with other governments. But if we attempted to use the treaty-making 51 "We must consider what this country has become in deciding what that [Tenth] Amendment has reserved." Missouri v. Holland, 252 U.S. 416, 433 (1920). 52 See text accompanying notes 10-11 supra. power to deal with matters which did not pertain to our 53 56 Hughes' remarks were extemporaneous, perhaps even impromptu, hot a carefully prepared statement of constitutional doctrine.54 He was setting forth the views which lay behind the position of the American Delegation (led by Hughes) to the Sixth International Conference of American States-that the United States "could not join" in a treaty to establish uniform principles of private international law,55 a position challenged by some leading international lawyers.' A year earlier, in the same forum, Hughes had attempted to justify this position on grounds that smacked of "reserved rights of states," and seemed not to take full account of Missouri v. Holland."7 The 1929 remarks quoted above still retained tenth amendment undertones which the Court that decided Missouri v. Holland might have rejected.58 The new emphasis on "international concern" and "relation to foreign 58 23 PROC. AM. SOC'Y INT'L L. 194, 195-96 (1929). 57 54 He spoke in response to urging from the floor that he express his views. Id. at 193. 55 In view of our system of government in the United States, with our fortyeight states and our federal government of limited powers, the United States could not join in this action, but it viewed with sympathetic interest the efforts of the other American states to obtain legislative uniformity. Hughes, The Outlook for Pan Americanism-Some Observations on the Sixth International Conference of American States, 22 PROC. AM. SOC'Y INT'L L. 1, 12 (1928). His comments in subsequent discussion suggest that in his view the United States could not adhere to the Bustamante Code because of a combination of constitutional and political obstacles. Id. at 61-62. The official declaration of the American delegation stated in part: 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. PAN AMERICAN UNION, TREATIES AND CONVENTIONS SIGNED AT THE SIXth InterNATIONAL CONFERENCE OF AMERICAN STATES 36, 69 (1950). 56 For example, Professor Manley O. Hudson, 22 PROC. AM. Soc'Y INT'L L. 60 (1928), and Charles H. Butler, 23 PROC. AM. Soc'Y INT'L L. 177 (1929). 57 22 PROC. AM. SOC'Y INT'L L. 61-62 (1928); see Hudson's remarks, id. at 60. It is clear that there was, at that time, a lag in the State Department's appreciation of the implications of Missouri v. Holland. See note 32 supra and note 63 infra. 58 E.g., Hughes' statement: "But if we attempted to use the treaty making power to control matters which normally and appropriately were within the local jurisdiction of the States. . . ." 23 PROC. AM. SOC'Y INT'L L. 196 (1929). affairs" might also be suspect if these phrases were interpreted to preclude American adherence to a code of private international law.50 Still, whatever the origins or context of Hughes' statement, its principal elements have been commonly accepted as sound constitutional doctrine. The Restatement on the Law of American Foreign Relations has made Hughes' doctrine (if not Jefferson's) "black letter law." Ou Students are now taught that a treaty would be invalid not only if it were inconsistent with the Bill of Rights or other provisions of the Constitution, but also if it dealt with a matter which was not of "international concern." There has been less agreement on what this limitation means. II Whatever Hughes had in mind, the scope of the constitutional limitation he proposed must derive from its constitutional underpinnings and rationale. The doctrine is commonly described as requiring that treaties deal with matters of "international concern." There might have been less confusion if the doctrine had been put forth as a requirement that treaties bear a "relation to American foreign affairs," another phrase which Hughes employed. Whatever phrase is used, the implied constitutional limitation derives from the view that the treaty power is a foreign relations power, and means that treaties must have a foreign relations purpose. 61 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 of making domestic law in the United 59 In further discussion of the Bustamante Code on private international law during the 1929 Proceedings of the American Society of International Law, Hughes admitted that “doubtless there were many matters considered which were not entirely of local concern," and he recognized, in general, that there may be concerns "which perhaps under former conditions had been entirely local, but which] had become so related to international matters that an international regulation could not appropriately succeed without embracing the local affairs as well." 23 PROC. AM. SOC'Y INT'L L. 195 (1929). But he implied that some aspects of the conflicts enterprise might be of strictly local interest, and that merely to achieve uniformity of practice within different nations might not be a proper subject of a treaty. Id. But see note 63 infra. 60 RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW § 117 (1965). I have assumed that Jefferson's statement and Hughes' are generally equivalent. If there is any difference between the requirement that a treaty "concern the other party" and that it be of "international concern," the difference does not seem relevant for our purpose. Suggestions that there are relevant differences between "international concern" and "multi-national concern" are not persuasive. If, as I believe, the justification for any "international concern" limitation derives from the purpose of the treaty power, the real test should be whether a treaty is entered into as an act of foreign policy in pursuance of American foreign relations. See note 61 infra. 61 When Hughes spoke of this question after he became Chief Justce he spoke of "all subjects that properly pertain to our foreign relations.” Santovincenzo v. Egan, 284 U.S. 30, 40 (1931). States-whether to exclude the House of Representatives or to invade the reserved jurisdiction of the states. Assume the President (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 States, 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. 62 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 everchanging 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 UN 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 uniform 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. cern. 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 conIn 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 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. 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 : [I]t has always been clear that international agreements, like Such agreements are not entirely recent phenomenal 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. |