Published online by Cambridge University Press: 20 April 2017
1 Jan. 27, 1952. The New York Times, Jan. 28, 1952.
2 217 Pac. (2nd) 481 (Cal. Dist. Ct. App., 2nd Dist., 1950); this Journal, Vol. 44 (1950), p. 590. Eehearing denied, 218 Pac. (2nd) 595 (1950). An appeal is now pending before the Supreme Court of California.
See also Kenji Namba v. McCourt, 204 Pac. (2nd) 569 (Ore. S. Ct., 1949); this Journal, Vol. 44 (1950), p. 199.
3 As working definitions of these terms, the following, formulated by a recent writer, may be adopted for purposes of this discussion: “A self-executing treaty is one which furnishes by its own terms (or by reason of the existence of previously enacted statutes which can implement it) a rule of law for the executive branch of the Government, the courts, the States, or for private individuals. An executory, or non-self-executing treaty, is one which explicitly or implicitly requires implementation by some executive or legislative agency, either Federal or State, before it can become a rule of law for the courts or for private individuals.” Alona E. Evans, “Some Aspects of the Problem of Self-Executing Treaties,” Proceedings, American Society of International Law, 1951, p. 68.
4 That treaties for the international protection of human rights might be invalid as an invasion of the domestic jurisdiction of the United States and of the reserved powers of the States has been suggested (erroneously, it is believed) by the Committee on Peace and Law Through United Nations of the American Bar Association. Report …, September 1, 1949, p. 5; Report …, September 1, 1950, p. 17. Cf. Edwin D. Dickinson, Law and Peace (1951), pp. 134–144; and McDougal, Myres S. and Leighton, Gertrude C. K., “The Rights of Man in the World Community: Constitutional Illusions versus Eational Action,” Yale Law Journal, Vol. 59 (1949–50), pp. 60–115 CrossRefGoogle Scholar.
5 In this case, the Alien Land Law of California. Cal. Gen. Laws, Act 261, $$ 1, 2, 7 (Deering, 1944), prohibiting ownership of land by any alien ineligible to citizenship.
6 “Charter Provisions on Human Rights in American Law,” this Journal, Vol. 44 (1950), pp. 543–544 Google Scholar. Judge Hudson, as Chairman of the International Law Commission of the United Nations, had maintained this view in voting against the Draft Declaration on Rights and Duties of States, on the ground that the provisions of its Article 6 went beyond the Charter of the United Nations, and beyond international law at its present stage of development. U. N. Doc. A/CN.4/SR. 25, pp. 3, 6. Article 6 reads: “Every State has the duty to treat all persons under its jurisdiction with respect for human rights and fundamental freedoms, without distinction as to race, sex, language, or religion.”
Also, Hans Kelsen, The Law of the United Nations (London, 1950), pp. 27–33; and Kunz, Josef L., “The United Nations Declaration of Human Rights,” this Journal, Vol. 43 (1949), p. 317 Google Scholar, and “Present-Day Efforts at International Protection of Human Rights,” Proceedings, American Society of International Law, 1951, p. 115, and authorities there cited. The learned author, however, surely misspoke himself in asserting that “all scholars agree that the Charter proclaims merely a principle, states only a program which needs translation into norms of international law. …” Cf. H. Lauter-pacht, International Law and Human Rights (1950), esp. pp. 145–161, and Quincy Wright, cited, note 13, infra.
Whatever may be the legal effect of the Charter provisions, there can be no dissent from Hudson’s assertion that the Universal Declaration of Human Rights possesses no binding force. Loc. cit., pp. 546–548. In the Fujii case the court had considered that the Declaration, while not a treaty, furnishes an authoritative interpretation of the Charter provisions, and that it serves to implement and to emphasize the aims of these provisions. 217 Pac. (2nd) 481, at 488 (1950). Wright accepts this view. Loc. cit., pp. 72, 77, note 13, infra. Hudson, however, contends that the provision of Article 17 that “everyone has the right to own property alone as well as in association with others,” is “so general that it could not sustain the result of the court’s decision, even if it were incorporated into American law.” Loc. cit., p. 547. Lauterpacht, op. cit., pp. 408–417, likewise rejects the “indirect legal authority” of the Declaration.
7 Loc. cit., p. 545. A later commentator likewise argues that the human rights provisions of the Charter are non-self-executing, because “the whole tenor of the two articles [Articles 55 and 56] is one of future action rather than a present binding agreement.” In support of this proposition, the writer quotes from a letter by Ernest A. Gross, Legal Adviser of the Department of State, to the Attorney General, as follows: “The articles of the Charter referred to in your letter [Articles 55 and 56] are not interpreted by the Department of State as imposing a legal obligation to guarantee observance of specific human rights and fundamental freedoms. …” C(rowell), E. H., “The Declaration of Human Rights, the United Nations Charter and Their Effect on the Domestic Law of Human Rights,” Virginia Law Review, Vol. 36 (1950), pp. 1079 Google Scholar, 1080. Durward V. Sandifer, Deputy Assistant Secretary of State for United Nations Affairs, has also stated: “Provision for action looking to the protection of human rights is clearly integral to the whole concept of the Charter. At the same time it is noteworthy that the Charter does not impose obligations on the Members with respect to the observance of specific human rights. The obligation is to promote their development and observance by joint and separate action.” Proceedings, American Society of International Law, 1949, p. 61. It will be noted that neither Mr. Gross nor Mr. Sandifer, having taken this position, considered it relevant to discuss the problem of the possible non-self-executing effect of the Charter provisions.
8 See United States v. Arjona (1887), 120 U. S. 479.
9 Missouri v. Holland (1920), 252 U. S. 416.
10 Hudson states: “The extent to which Congress has power to implement by legislation the human rights provisions of the Charter is another question, which need not be discussed here.” Loc. cit., p. 545.
11 It should be noted that, quite apart from any authority which may be based upon treaty, Congress has now large and unexhausted constitutional powers to legislate for the purpose of correcting any State deficiencies in providing for adequate protection of human rights. See Zechariah Chaffee, Jr., “Federal and State Powers under the Covenant on Human Rights,” Wisconsin Law Review (1951, No. 3), pp. 400–424.
12 Although the majority in Oyama v. State of California (1948), 332 U. S. 633, this Journal, Vol. 42 (1948), p. 475, did not deem it necessary to pass upon the constitutionality of the California Alien Land Law as a whole, they did not expressly affirm its constitutionality, and the four concurring justices considered this law unenforceable as violative of the equal protection clause of the Fourteenth Amendment, and, subsidiarily, of the human rights provisions of the Charter. See comment, California Law Review, Vol. 36 (1948), pp. 320–325. Also Takahashi v. Fish and Game Commission (1948), 334 U. S. 410, this Journal, Vol. 42 (1948), p. 934, in which refusal by the State of California to issue a fishing license to a Japanese national was held to be repugnant to the Fourteenth Amendment.
In Kenji Namba v. McCourt (1949), 204 Pac. (2nd) 569, the Supreme Court of Oregon, relying upon the above decisions, held the Oregon Alien Land Law unconstitutional upon grounds similar to those advanced by the concurring justices in the Oyama case.
13 “National Courts and Human Rights—The Fujii Case,” this Journal, Vol. 45 (1951), p. 70.
14 Ibid., p. 72.
15 Ibid., p. 77. Article 56 would also be self-executing insofar as it relates to the obligation of a Member “to prevent its agencies and officials from performing acts which impair a right. …” It would not, however, be self-executing with respect to the obligation “to enact laws and provide suitable procedures to prevent persons within its jurisdiction from impairing a right …” or “to maintain such judicial, regulatory, and operative agencies as may be necessary to give practical effect to a right, as, for instance, social security and educational opportunity.” Ibid. Cf. note 6, supra.
It is precisely the apprehension that most, if not all, of the provisions of a future Covenant would be self-executing that led the House of Delegates of the American Bar Association, at its 1950 session, to instruct its Committee on Peace and Law Through United Nations to prepare for its consideration draft amendments to the Constitution designed to avoid that result. Report …, Sept. 1, 1950, p. 1. The amendment proposed by the Committee would provide that treaties affecting civil rights or federal-state relationships should “not become domestic law unless, and only to the extent that, the whole Congress acts by separate legislation within its existing constitutional powers apart from the treaty.” The Committee stated: “Such a clause will put the world on notice that such a limitation on our treaty powers exists, and will put us on substantial parity with other nations in the treaty field. Under such a clause a commitment on our part in a treaty to implement the treaty by legislation, ‘in accordance with our constitutional processes,’ would be squarely within the limitation. The clause will modify Missouri v. Holland and nullify such decisions as the recently much-discussed California case of Fujii v. State …, and prevent the disturbance of the balance between federal and state power by the treaty method.” Report …, September 1, 1951, pp. 9, 10. The House of Delegates of the Association on Feb. 26, 1952, approved the following proposed amendment to the Constitution of the United States reported by the Committee, and recommended its adoption through action by Congress: “A provision of a treaty which conflicts with any provision of this Constitution shall not be of any force or effect. A treaty shall become effective as internal law in the United States only through legislation by Congress which it could enact under its delegated powers in the absence of such treaty.” Report of Standing Committee on Peace and Law Through United Nations, Feb. 1, 1952. See also the resolution for a constitutional amendment (S. J. Res. 130) submitted on Feb. 7, 1952, by Senator Bricker (R., Ohio) and 58 other Senators, and referred to the Committee on the Judiciary, Cong. Rec., 82d Cong., 2d Sess., Vol. 98, No. 20, Feb. 7, 1952 (Daily ed.), p. 921, which provides, in part:
“Section 1. No treaty or executive agreement shall be made respecting the rights of citizens of the United States protected by this Constitution, or abridging or prohibiting the free exercise thereof.
“Sec. 3. No treaty or executive agreement shall alter or abridge the laws of the United States or the Constitution or laws of the several States unless, and then only to the extent that, Congress shall so provide by act or joint resolution.”
Cf. Lawrence Preuss, “Enforcement of Treaty Obligations Through Internal Law—System of the United States and of Some Other Countries,” Proceedings, American Society of International Law, 1951, pp. 82–100.
16 See, for example, Asakura, v. Seattle (1924), 265 U. S. 332; and Jordan v. Tashiro (1928), 278 U. S. 123, cited by Wright, loc. cit., p. 75, note 39.
A federal-state clause in the Covenant or a reservation to the Covenant (see proposed reservations approved by the House of Delegates of the A. B. A. at its 1951 session, Report, September 1, 1951, p. 4) could not, in the opinion of the Committee on Peace and Law, in itself serve as a protection “against the expansion of the limited power of the Federal Congress in the United States to such extent as necessary to fulfill the obligation under the treaty if Congress determines to exercise that power. … No action of the parties or of the Senate and the President of the United States at the time of ratification of a treaty can take away the constitutional power of Congress to execute the treaty and fulfill the international obligation under the treaty if Congress decides to do so. Without affecting the power of Congress … the duty of the Federal Government toward other contracting nations for the fulfillment of United States obligations under a treaty and the intent of the United States at the time of execution of a treaty can be restricted by a [federal-state] clause. … Ibid., Appendix A, p. 36.
See Chaffee, Wisconsin Law Review (1951, No. 4), pp. 623–656; Liang, Yuen-li, “Colonial Clauses and Federal Clauses in United Nations Multilateral Instruments,” this Journal, Vol. 45 (1951), pp. 121–128 Google Scholar; and Edgar Turlington, “The Legal Effect of Treaties in Municipal Law: The Special Position of Federal States,” Proceedings, American Society of International Law, 1951, pp. 76–82.
17 At its sixth regular session the General Assembly requested the Economic and Social Council to draft two separate covenants, one defining civil and political rights and the other, economic, social and cultural rights. United Nations Bulletin, Vol. 12 (Feb. 15, 1952), p. 204.
18 Loc. cit., p. 547.