Page 166 - Law of Peace, Volume ,

the new treaty or agreement. The procedure also requires munities of the United Nations 11s provides: "It is under-
consultation with the Congress when there is a question stood that, when an instnunent of accession is deposited
whether an agreement should be concluded as a treaty or on behalf of any Member, the Member will be in a posi-
in some other form. Efforts at further clarification of ex- tion under its own law to give effect to the terms of this
ecutive and congressional powers regarding Executive convention." Even more proiective in nature, section 15
agreements continue. The Department of Defense estab- of the Tracking Stations Agreement between the United
lished procedures to implement the Case Act as it applies States and Spain 116 states: "It is understood that, to the
to organizations within and personnel of that Department extent the implementation of this agreement will depend
in a directive dated 3 November 1976.112
8-23. "Self-Executing" Agreements. a. General. on funds appropriated by the Congress of the United
Whether a given treaty is "self-executing" or requires States, it is subject to the availability of such funds."
special implementing legislation in order to give force and 8-24. Conflict of Agreement with Internal Law.
effect to its provisions, through the aid of the courts, pre- WHITNEY v. ROBERTSON
sents primarily a domestic question of construction for the Supreme Court of the United States, 1888
courts. It is diflicult, however, to extract any clear princi- 124 U.S. 190, 8 S.Ct. 456, 31 L.Ed. 386
ple for judicial guidance from the cases discussing this sub- [Plaintiff sued to recover amounts paid under protest to the Collector
ject. A careful study of the decisions dealing with this of Customs at New York in satisfaction of duties assessed upon plain-
problem indicates certain recurring factors which have tiffs shipments of sugar from the Dominican Republic. Plaintiff alleged
been considered by the courts to be controlling. that sugar from the Hawaiian Islands was admitted free of duty into the
United States, and claimed that a clause of the treaty between the
(1) Where a treaty is incomplete either because it United States and the Dominican Republic guaranteed that no higher
expressly calls for implementing legislation or because it duty would be assessed upon goods imported into the United States
calls for the performance of a particular affirmative act by from the Dominican Republic than was assessed upon goods imported
the contracting states, which act or acts can only be per- from any other foreign country. Judgment wasentered for the Collector
formed through a legislative act, such a treaty is for ob- of Customs upon the latter's demurrer, and plaintiff appealed. The
Supreme Court, in an opinion by Mr. Justice Field, just held that the
vious reasons not self-executing, and subsequent legis- treaty could not be interpreted to foreclose the extension by the United
lation must be enacted before such a treaty is enforceable States of special privileges to countries such as the Hawaiian Islands
by the courts. Inasmuch as treatiescalling for expenditure which were willing in return to extend special privileges to the United
of funds are ineffective without an accompanying ap- States.]
propriation, they are uniformly considered to not be self- But, independently of considerations of this nature, there is another
executing. On the other hand, where a treaty is full and and complete answer to the pretensions of the plaintiffs. The act of Con-
gress under which the duties were collected, authorized their extraction.
complete, it is generally considered to be self-executing by It is of general application, making no exception in favor of goods of any
the courts, especially when the treaty is concerned with country. It was passed after the treaty with the Dominican Republic,
granting equal treatment to aliens in the field of commerce and, if there be any conflict between the stipulations of the treaty and
and trade between the signatory powers to such the requirements of the law, the latter must control. A treaty is primarily
a contract between two or more independent nations, and is so regarded
treaties. 113 by miters on public law. For the infraction of its provisions a remedy
(2) Restatement, Second, in reference to self-ex- must be sought by the injured party through reclamations upon the
ecuting agreements, provides: other. When the stipulations are not self-executing, they can only be
(1) Whether an international agreement of the United States is or is enforced pursuant to legislation to cany them into effect, and such legis-
not self-executing is fially determined as a matter of interpretation by lation is as much subject to mdihtion and repeal by congress as legis-
courts in the United States if the issue arises in litigation. lation upon any other subject. If the treaty contains stipulations which
(2) When an international agreement to which the United States is a are self-executing, that is, require no legislation to make them opera-
party manifests an intention that its provisions shall be effective under tive, to that extent they have the force and effect of a legislative enact-
the domestic law of the parties at the time it comes into effect, the ment. Congress may modify such provision, so far as they bid the
agreement is normally interpreted by the courts as self-executing under United States, or supersede them altogether. By the constitution, a
the law of the United States subject to the constitutional limitations indi- treaty is placed on the same footing, and made of like obligation, with an
act of legislation. Both are declared by that instrument to be the
cated in 4 141(3). 114
supreme law of the land, and no superior efficacy is given to either over
b. If mculties are expected in the process of imple- the other. When the two relate to the same subject, the courts wiU al-
menting the provisions of an international agreement, the ways endeavor to construe them so as to give effect to both, if that can
executive of a state may take certain precautions in order be done without violating the language of either; but, if the two are in-
to avoid international responsibity for defaulting on the consistent, the one last in date will control the other: provided, always,
the stipulation of the treaty on the subject is self-executing. If the coun-
obligations imposed by the agreement. For example, Sec- try with which the treaty is made is dissatisfied with the action of the leg-
tion 34 of the Convention of the Privileges and Im- islative department, it may present its complaint to the executive head
of the government, and take such other measures as it may deem essen-
112. DOD Directive 5530.3, International Agreements (3 Nov tial for the protection of its interests. The courts can afford no redress.
1976). Whether the complaining nation has just cause of complaint, or our
113. Aerovias Interamericanas de Panama, S.A. v. Board of County
Commissioners of Dade County, Florida, 197 F. Supp. 230 (1961). 115. 1 U.N.T.S. 15 (1946).
114. Resmtement, Second, 5 154. 116. 15 U.S.T. 153, 511 U.N.T.S. 61 (1964).