constitutional (p. 484). It placed its decision squarely on the United Nations Charter "an authority more potent than the constitution of this State" (p. 484). It stated that the position of the country "forbids trafficking in innocuous generalities but demands that every State in the Union accept and act upon the Charter according to its plain language and its unmistakable purpose and intent."

The preamble and articles 1, 55, and 56 of the Charter were examined as well as the Universal Declaration of Human Rights, various articles of which were cited, and the court stated:

"This declaration implements and emphasizes the purposes and aims of the United Nations and its Charter" (p. 488).

"A perusal of the Charter renders it manifest that restrictions contained in the Alien Land Law are in direct conflict with the plain terms of the Charter above quoted and with the purposes announced therein by its framers. It is incompatible with article 17 of the Declaration of Human Rights which proclaims the right of everyone to own property."

On rehearing granted (218 P. 2d 595) in speaking of the Declaration of Human Rights, the court said, in part:

"There is no intimation in the opinion that the declaration is a treaty, for it is not, or that it has any binding force on the United States or any State or political subdivision thereof. Reference was made to that document, as clearly shown by the opinion, as well as to the address of the President to the Senate, as especially emphasizing the purposes and guarantees of the Charter."

Prof. Quincy Wright in his article National Courts and Human Rights in 45 American Journal of International Law says:

"It is reasonable to infer from the phrase 'in cooperation with the organization' [Charter, Article 56] that the Members, in fulfilling their pledge to take 'separate action,' SHALL be guided by the purposes stated in the Charter and by the more detailed interpretation of the meaning of those purposes and the appropriate methods of achieving them, which organs of the United Nations have recommended. Consequently, the terms of Article 56 amply support the opinion of the court in the Fujii case [the District Court of Appeal] that the Universal Declaration of Human Rights, while not a treaty, constitutes an authoritative. interpretation of the words 'Human rights and fundamental freedoms' in Articles 55 and 56 of the Charter" (p. 72). [Brackets, capitals, and emphasis added.] The mandatory verb "shall," which we have capitalized, is significant. "Undoubtedly, the organs of the United Nations are also entitled to interpret the duties of the members of the United Nations, to define the meaning of human rights and fundamental freedoms, and to establish procedures for promoting universal respect for those rights and freedoms. Such action in some cases, may be obligatory upon, and, in some cases, only recommendatory to, the members. Insofar as organs of the United Nations have acted, whether by interpretative resolutions, by implementation of procedures of the Charter, or by achieving acceptance by States of concrete obligations as proposed "in the so-called Covenant of Human Rights, the members, pledged to act in cooperation with the United Nations, are bound to be guided by, or at least to consider, this action" (p. 74)..

The United Nations Charter was ratified in 1945.

The Declaration of Human Rights was adopted by the General Assembly of the United Nations on December 10, 1948.

Secretary of State Stettinius stated in July 1945 to the Foreign Relations Committee of the Senate during the hearings on the United Nations Charter: "Because the United Nations is an organization of sovereign states, the General Assembly does not have legislative power. It can recommend, but it cannot impose its recommendation upon the member States" (hearings, p. 218).

The conclusion is obvious. Our supreme law may today be made for us by treaties, to which we adhere. But we are getting to a point in this process where it is contended that an international body in which we have only one vote out of many and which has no legislative power can subsequently advise us as to what our obligations are and consequently what our domestic law is as a result of that treaty. The danger of following such a course is apparent.

The draft covenant on civil and political rights (the other branch of the old Human Rights Covenant, United Nations Bulletin, September 1, 1952, p. 255) also requires mention. This draft covenant deals in the civil and political field with a broad and general category of matters and would constitute a wide basis for federal treaty law.

However, the Commission on Human Rights decided last spring to ask the Economic and Social Council to instruct it to complete its work at its 1953 session, so that neither draft covenant is definitive (State Department Bulletin, July 7, 1952, p. 20).

An instructive analysis by Prof. William Fleming of the older draft Covenant on Human Rights appeared in 37 American Bar Association Journal at pages 739 and 816 entitled "The Danger in the Covenant on Human Rights."

It has been stated:

"For us to serve notice that we would not today accept our own Bill of Rights if it were presented to us as an international document is a statement which should make every one of us blush." 43

This statement representing as it may, a point of view entertained by many, fails to take into account the difference between what is essentially and solely the affair of the United States, for our own guidance and protection and subject to the interpretation of our own courts and making those same matters the affair of numerous other countries, subject to their claims of meaning and, if their ideas and ours did not coincide, perhaps subject to interpretation by the International Court of Justice or some other international body. The remark quoted above strongly illustrates the divergence between matters which are thought of as subject to the treaty power today and those considered as such in 1787.

Mention has already been made of the proposed convention for the establishment of an international criminal court "-not a court to try only war crimes; not a court to try international disputes between nations; but one which could try an American citizen (if we should ratify such a convention and confer jurisdiction upon the Court) outside the United States for an act done here and alleged to constitute an international crime, without indictment by a grand jury and without trial by jury, in the face of the provisions of amendments V and VI to the Constitution relating to indictment by a grand jury and a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed."

Under article I section 8 Congress can clearly provide the definition of and the punishment for "offenses against the law of nations." But such a statute would necessarily create a crime under Federal law-not an international crime; and punishment for such a crime so created would be surrounded by all the constitutional safeguards. The difference is obvious.

The Senate of the United States knows that there is pending before it a treaty with one foreign nation, the provisions of which, if ratified, might well apply to many other nations under most-favored-nation clauses. That treaty provides:

"Nationals of either party shall not be barred from practicing the professions within the territories of the other party merely by reason of their alienage; but they shall be permitted to engage in professional activities therein upon compliance with the requirements regarding qualifications, residence, and competence that are applicable to nationals of such other party.'

99 47

This would apply to attorneys and counselors at law, and is believed to be the first provision of its kind in any proposed treaty. It would, it is true, require an alien candidate for admission to the bar of any State or of any Federal court to comply with the educational and perhaps the residence qualifications of our various jurisdictions. But it would outlaw requirements as to State or National citizenship as a prerequisite to admission. Whether an oath to support the Constitution and laws of the United States and of a particular State could be required of an alien applicant who owed allegiance to a foreign state and its constitution and laws would pose an interesting question. The

43 Mrs. Eleanor Roosevelt, New York Times, July 23, 1952, p. 14.

48

44 Appendix C, Report, Committee on Peace and Law. February 1. 1952, p. 31. 45 This is the function of the International Court of Justice in adhering to which the Connally reservation was attached providing that it "shall not apply to disputes with regard to matters which are essentially within the domestic jurisdiction of the United States as determined by the United States." [Emphasis added.]

46 The pros and cons of this suggested treaty are discussed in two articles in the American Bar Association Journal for August 1952. at pp. 641 and 644.

47 Art. VIII-2 of the proposed treaty with Israel.

48 New York: Judiciary Law. sec. 466, requires that all attorneys take the constitutional oath of office in open court and subscribe to the same in a roll book. The New York Constitution, art. XIII, sec. 1. sets forth the constitutional oath. It requires that the person swear that he will support the Constitution of the United States and the Constitution of the State of New York. Judiciary Law, sec. 467, requires before a person may practice law that he must file an affidavit stating that he is a natural-born citizen of the United States, or, if not a natural-born citizen, he must state where and when he was naturalized.

wisdom of creating aliens officers of our courts is open to serious question and to require it in the case of States which think otherwise is of the type of domestic legislation which the suggested amendment would prevent.

Were that treaty ratified the States would no longer be able to control who practiced law before their courts.

The Congress by statute, if so minded, could plainly accomplish this result for the Federal courts regardless of any treaty.

Can it possibly be that the necessity of providing Americans with the reciprocal right to practice law in the courts of foreign countries can call for any such a provision at this?

The Convention on Gathering and International Transmission of News and Right of Correction is another proposed treaty growing out of the United Nations.

49

POINT III

The Department of Justice states (p. 28) that "the framers clearly understood that the treaty power was very broad in scope and could reach many matters which would otherwise be solely of State concern" [italics added] but apart from the suggested limitation that a treaty may not do what the Constitution forbids, the Department of Justice does not specify any field reserved to the States as against the exercise of treaty power. As has been shown (point I) the Federal Government may create íor itself jurisdiction over all matters within the competence of the States.

Therefore the statement of the Department of Justice at page 28

"In respect of general legislative powers, those powers not delegated to the Federal Government are reserved to and may be exercised by the States"

is of little significance.

The Memorandum of the Department of Justice at page 29 states that a treaty has equal status with an act of Congress so that a later inconsistent treaty will prevail over an earlier statute and a later statute will prevail over an earlier treaty. While an inconsistent later treaty will supersede an act of Congress in toto if they are totally inconsistent, a later inconsistent statute cannot totally supersede a prior treaty; and the Department of Justice recognizes this. It states (p. 31):

"Finally, in an extreme case, there is available as a check on the President and Senate the undoubted power of Congress, by subsequent statute, to override the treaty so far as its effect on domestic law in concerned."

The same argument was advanced in the report of the Committee on Federal Legislation and the Committee on International Law of the Association of the Bar of the City of New York.50

Such a procedure would be not only dangerous, but would probably be open to challenge in some of its applications.

A treaty may and in many cases does have a double aspect. First, and that is its primary aspect and principal purpose, it constitutes an international agreement between sovereigns and becomes as to them binding under international law-its international law phase. But the other aspect is the domestic law phase.

True it is that a self-executing treaty may as to its domestic law phases be nullified by a subsequent inconsistent statute.51 But that remedy is drastic indeed.52 It involves a breach of the international obligation of the United

California Secs. 6060-6067, Deering's California Codes-Business and Professional Codes (1951) require an applicant for admission to the practice of law to be a citizen of the United States and to take an oath to support the Constitution of the United States and the Constitution of California.

New Jersey New Jersey Statutes Annotated, sec. 41: 1-1, 1-2, require all applicants for admission to the bar to swear that they will support the Constitution of the Unite States and the Constitution of New Jersey. Such applicants must also swear that they will bear true faith and allegiance to the Constitution of the United States and to the governments established in the United States under the authority of the people. So far as can be determined, there is no statutory requirement of citizenship.

Pennsylvania: Purdon's Pennsylvania Statutes, title 17, sec. 1603, sets forth the oath of an attorney. This requires that the applicant swear that he will support the Constitution of the United States and the Constitution of the Commonwealth of Pennsylvania. The statutes of the remaining States have not been examined.

49 Report, Committee on Peace and Law, February 1, 1952, pp. 21 and 42.

50 This report is on file with the subcommittee. See pp. 5, 27, and 28.

51 Chinese Exclusion Case, Chan Ping v. United States, 130 U. S. 581.

52 The Department of Justice recognizes this, for it says this remedy is in an extreme

case.

States that obligation which has "the force of law, but derive it from the obligations of good faith."

In an address entitled "Recent Questions and Negotiations" (18 American Journal of International Law 229, at p. 230) Hon. Charles E. Hughes, then Secretary of State of the United States, said:

"Where international rights and obligations are involved, controversies not otherwise adjusted would naturally come before an international arbitral tribunal whose decisions would be governed by international law and would not be controlled by municipal law. This principle was explicitly recognized in the recent decision by Chief Justice Taft, as arbitrator in the controversy between Great Britain and Costa Rica, where the Chief Justice illustrated the point that, while in our system an act of Congress might for municipal purposes repeal a treaty, the United States could not thus get rid of an international obligation which would continue and would be enforced by an international arbitral tribunal. The Chief Justice said:

""This is not an exceptional instance of an essential difference between the scope and effect of a decision by the highest tribunal of a country and of an international tribunal. The Constitution of the United States makes the Constitution, laws passed in pursuance thereof, and treaties of the United States the supreme law of the land. Under that provision, a treaty may repeal a statute and a statute may repeal a treaty. The Supreme Court cannot under the Constitution recognize and enforce rights accruing to aliens under a treaty which Congress has repealed by statute. In an international tribunal, however, the unilateral repeal of a treaty by a statute would not affect the rights arising under it and its judgment would necessarily give effect to the treaty and hold the statute repealing it of no effect.""

Today, with the treaty power and the power of treaties being what they are, a foreign nation dealing with us is not on notice of any constitutional lack of power of the United States to make any treaty domestic law unless, perhaps, it be a treaty transgressing a prohibition of the Constitution or abdicating legislative, executive, or judicial functions, if the latter be thought longer to constitute a limitation on treaties.

Under international law, however, a foreign nation is probably on notice of constitutional limitations on the treaty power."

53

So a subsequent statute nullifying a self-executing treaty as domestic law would be an unvarnished breach of good faith, and of our international commitments.

If full legislative debate were originally called for, any such serious situation would be much less apt to arise; and if it did could be much more easily defended. If we are to look for our ultimate protection in an extreme case to the Congress to nullify by legislation the domestic effect of an unwise treaty, why is there objection to having the Congress put the treaty provisions in operation, domestically, in the first place? "The exception proves the rule" doesn't mean that the rule must have exceptions but that if the rule doesn't cover the exceptional case, it is no rule.

While under the "necessary and proper" clause Congress acquires by the making of a treaty the power to implement the treaty in fields otherwise beyond its powers (Missouri v. Holland), does that give Congress the right to "unimplement" a treaty in that very same field? The result would be repudiation of our international obligation once recognized and implemented by Congress. The question would not be presented where the subject matter is originally within congressional power apart from the "necessary and proper clause," such as the Chinese exclusion case, supra.

To say that these constitutional provisions have served well for 163 years is no answer to today's problems; and we are confronted with today, not 1787. We are dealing with a situation where not only is the treaty power being utilized to form a basis for domestic legislation where none heretofore existed 54 but also, as vigorously asserted by Mr. Moscowitz," as a basis for creating a supranational regulation of our individual relationships, rights, and duties.

53 Hackworth, Digest of International Law, vol. V, p. 154, citing the Harvard Research in International Law. 54 Articles 55 and 56 of the United Nations Charter. These articles probably furnish a constitutional basis under Missouri v. Holland for a compulsory FEPC law. And see report of President's Committee on Civil Rights, par. 10. 55 Supra, point I.

Do we wish an increasingly centralized government which may increasingly assert (and certainly is being increasingly importuned to assert) the right, by means of the treaty power and the power of treaties to legislate for every State and citizen in the country on any subject, external or internal, that can be made the subject of a treaty with some foreign state, unless, perhaps, it be action forbidden by the Constitution? Or is the treaty power and the power of treaties to be confined to those fields which are external or which fall within the powers delegated to Congress without Congress' acquiring new powers from the very fact of the making of the treaty itself?

Are our States to be practicaily, if not totally, submerged by that power which was delegated in 1787 in order to allow the new Government which was being formed to implement a treaty dealing with debts owed British subjects? Or are the States to continue to be sovereign States with rights and powers of regulating and legislating with regard to their own internal affairs?

In view of the breadth of the treaty power today, it is nothing short of astounding to find in the memorandum of the Department of Justice the following: "In such circumstances, if any constitutional amendments to the powers over foreign relations are needed, one would expect that they would be in the direction of increasing the powers of the Government in the international field, and of facilitating the conduct of foreign relations" (p. 39).

In all fairness the Department should have explained how it would be possible to increase the powers of the Government in the international field and what effect any such increase, if possible at all, would have upon the internal structure of our country and the sovereignty of the States.

Naturally, if one is in favor of increasing power, one must be opposed to any restriction on existing power.

Early in the Constitutional Convention, Mr. Read observed:

"Too much attachment is betrayed to the State Govermts. We must look beyond their continuance. A national Govt must soon of necessity swallow all of them up. They will soon be reduced to the mere office of electing the national Senate."

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The path for the practical abolition of the States by means of the treaty power and the power of treaties has been well marked out. The swallowing process by the treaty route is more than a mere possibility. That process must not be allowed to come to fruition.

Not only is the treaty power a threat to the States, it is a threat to the very Federal Government itself through the pressures of internationally minded groups who would favor erecting a world government by the treaty route in whose favor we would abdicate much, if not all, of our sovereignty, and who believe the treaty route to their objective more easily traveled than the amendment route.

The Department of State and the other departments should welcome the amendment which would relieve them of the pressures from these groups and put them more on a par than they are today with other nations at the conference table.

If it be the desire of the people of the United States by and through the use of treaties to permit their Government to be converted into an all-powerful state, it is within their power, and it is their right to do so. But the people should be frankly advised that this is where "treaty law" is leading us.

If the people wish much or all of the powers of the Federal Government to be abdicated in favor of a world government or an international organization through the use of the treaty power, this is their privilege. But if they want to prevent this being done through the use of the treaty power they should be told that a constitutional amendment is necessary.

If it is the desire of the people to see the States reduced to internal impotency through the use of the treaty power, that avenue is open.

If the people feel that their liberties would be safer and more adequately guarded by the representatives of other nations than by their own, this also can probably be accomplished through treaties.

In the first instance, it is not a question of the wisdom or the folly, the desirability or the repugnance, of any of these steps. The problem is of the means which may be used to accomplish these ends and the people should be fully advised by the Government that the treaty power furnishes an avenue through which these ends may be accomplished.

56 1 Farrand 136.