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affairs" might also be suspect if these phrases were interpreted to preclude American adherence to a code of private international law.69
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 Foreiyn Relations has made Hughes' doctrine (if not Jefferson's) "black letter law." 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.
Whatever Ilughes had in mind, the scope of the constitutional limitation he proposed niust 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.
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
69 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, Ibut which) had become so related to international matters that an international regulation could not appropriately succeed without einbracing 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 inight be of strictly local interest, and that merely to achieve uniformity of practice within different nations inight not be a proper subject of a treaty. Id. But see note 63 infru.
80 RESTATEMENT (SECUND) 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 requirenient 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 concerii" and "multi-national conceru" 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.
81 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.
In any event, llughes' 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 g'eneration, 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 hunian 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
82 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 infru. For a discussion of soine different kinds of concerns that may lead nations to negotiate a treaty or include a particular provision, see Niuyarı Reservation 1164-69.
69 The agreement that troubled Hughes affords an interesting instance. Whatever might have been the case in 1928, I ain 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 con
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).
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 "shan” 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 denand American compliance.
It should be clear, moreover, that nothing in the requirenient 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
may bind themselves to do, or not to do, for each other;
In fact, the United States, like other nations, has
84 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.
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an American soldier if he had been tried for the same offence
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 international 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
85 Law of the Land 911-12 (footnotes omitted).
Opponents of human rights conventions have also invoked Power Authority v. FPC, 247 F.20 538 (D.C. Čir.), vacated as moot, sub nom. American Pub. Power Ass'n v. Power Authority, 355 U.S. 64 (1957). That case, I believe, was wrongly decided. See Niagara Reservation, passim. In any event, it has no relevance to our question. That case held that 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. That 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 been 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).
68 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
question is not whether the United States should legislate 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 sone 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 sonue have consused tliat doctrine with the very different concept of "domestic jurisdiction.” In part, responsibility for this confusion may be traced to the original Circular 175,07 promulgated by Secretary of State
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 hunian 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 reininder of world opinion to all who may seck to violate the human rights they define. They also serve as a continuous comunitinent 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
forins of tyranny. Hearings on Human kiyhts Conventions Before Subcomm. of the Senate Comm. om Foreign Relulions, Xth Cong., Ist Sess. 40 (1967).
67 U.S. Dep't of State, Dep't Cir. No. 175 (1955), reprinted in 50 Au. J. INT'LL 784 (1956).