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The Proclaiming of Treaties in the United States
Published online by Cambridge University Press: 20 April 2017
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- Copyright © American Society of International Law 1950
References
1 Cf. Yuen-li Liang, “ The Use of the Term ‘ Acceptance,’ in the United Nations Treaty Practice,” this JOURNAL, Vol. 44 (1950), p. 342; H. W. Briggs, “United States Treaty Developments,” ibid., p. 370.
2 Cf. Hunter Miller, Treaties and Other International Acts of the United States of America, Vol. I (Short Print), pp. 19-20; H. Reiff, “The Proclaiming of Treaties in the United States,'?” this JOURNAL, Vol. 30 (1936), pp. 63-79; Hackworth, Digest of International Law, Vol. V, pp. 84-87; C. C. Hyde, International Law (2d ed.), Vol. II, pp. 1448-1449; H. M. Catudal, “Executive Agreements: A Supplement to the Treaty-Making Procedure,” 10 George Washigton Law Review (1942) 653-669; id., “Executive Agreement or Treaty?,” 10 The Journal of Politics (1947) 168-178. For a brief note on the nature and use of the Presient's proclamation generally, but not specifically in relation to treaties, cf. E. S. Corwin, The President: Office and Powers (New York, 1940), p. 363, note 10. Cf. also the comprehensive note on the general subject of introduction into the municipal order by H. W. Briggs, The Law of Nations: Cases, Documents, and Notes (New York, 1938), pp. 432-436.
3 Dr. Miller graciously consented to this use of his original letter in a letter dated May 6, 1950.
4 Cited supra, note 2.
5 He pointed out, however, that Jefferson, when President, appeared to believe that proclamation of a treaty was essential to its status as law of the land. Jefferson's language in II Miller 484.
6 Ibid., pp. 3, 30-31. The French Government resented alleged premature publication by the United States.
7 U. S. Department of State, Treaty Series No. 83, II Miller 45, Act Separate and Secret.
8 Treaty Series No. 102, II Miller 96, 101, 105; separate article intended to be secret.
9 Stat. 187. Quoted by Reiff, loc. eit., p. 69, note 42.
10 Aug. 7, 1790, public articles in 7 Stat. 35; secret articles in II Miller 343-345.
11 Treaty of Commerce and Navigation, May 7, 1830, Treaty Series No. 267, III Miller 541, 575.
12 With Mexico, Feb. 2, 1848, Treaty Series No. 207, V. Miller 207, 245. While in the case of each of these secret articles, the Senate refused advice and consent,“the objections in each case seem to have been on the merits.”
13 Treaty of Amity and Commerce, signed at Bangkok, March 30, 1833; ratifications exchanged at Bangkok April 14, 1836; proclaimed June 24, 1837. Treaty Series No. 321, III Miller 741.
14 Exchange of Official, Scientific, Literary, and Industrial Publications, Jan. 27, 1902, Mexico City, Pan American multilateral agreement, Treaty Series No. 491-A. There is no copy of this agreement in Malloy, but copies may be found in Department of State Treaty Information Bulletin, No. 23, August, 1931, p. 20, and in the Report of the Delegates of the United States to the Second International Conference of American States (Sen. Doc. No. 330, 57 Cong., 1 Sess.), p. 213.
15 Factor v. Laubenheimer, U.S. Marshal, et al., 290 U. S. 276 (1933), this JOURNAL, Vol. 28 (1934), p. 149. The extradition treaty of Dec. 22, 1931, between the United States and Great Britain, was involved in this case. “Article 18 of the treaty provided that it was to 'come into force ten days after its publication, in conformity with the forms prescribed by the laws of the high contracting parties.' Ratifications were exchanged at London, August 4, 1932; the President issued a proclamation in the usual form containing the treaty, as of the date August 9, 1932; but the British Government withheld the issuance of an Order-in-Council containing the treaty, apparently to avoid affecting the result in the Factor Case. Counsel for the petitioner argued that the treaty was in force, but the Supreme Court, without going into the merits of the contention, followed the State Department, which appeared not to have recognized the treaty as in force in either country.” (Footnotes omitted.) Article by Reiff (cited supra, note 2), at p. 63. For discussion of the Factor Case, cf. M. O. Hudson,“The Factor Case and Double Criminality in Extradition,” this JOURNAL, “Vol. 28 (1934), pp. 274, 276; E. M. Borchard, “The Factor Extradition Case,” ibid., p. 742; E. E.Cushman,“Constitutional Law in 1933-34,” American Political Science Eeview, Vol. 29 (1935), pp. 36, 44.
16 In the case of the extradition treaty with Great Britain, supra, ratifications were exchanged at London, August 4, 1932; proclamation by the President issued August 9, 1932; but the Order-in-Council was not issued until June 6, 1935. Note by the Department of State in Treaty Series No. 849. Dr. Miller comments:“I n my own opinion a proclamation [by the United States] in that case was properly issued. . . . The remedy in all such cases [of treaties stipulating promulgation for effectiveness] is a simple one, namely, to put in a time clause for the promulgation on each side. That would express what the parties really mean. . . . Three months or six months would give ample time.”
17 Convention between the United States and Rumania for the Reciprocal Protection of Trade Marks, signed at Bucharest, March 18/31, 1906, Art. III (Treaty Series No.451).
18 I Malloy 1146-1157. For an interesting instance of hesitation see the Convention with France Eegarding Claims and Begarding Duties on Wines and Cottons, signed at Paris, July 4, 1831 (Treaty Series No. 88). Batifled by the United States, Feb. 2, 1832; by France, Aug. 31, 1831; ratifications exchanged at Washington, Feb. 2, 1832. Proclamation signed on Feb. 2, 1832, but not issued until July 13, 1832, when it was given this latter date, on passage of enforcing legislation dated July 13, 1832 (4 Stat.574). I l l Miller 641, note on this peculiar postponement at p. 648.
19 Treaty with Great Britain Begarding the North Atlantic Fisheries, Commercial Beciprocity with British North American Colonies, and Navigation etc., signed at Washington, June 5, 1854 (Treaty Series No. 124). Art. V conditioned effectiveness of the treaty on passage of legislation by the British Parliament, the British North American Colonies affected by the treaty, and Congress. Art. VI conditioned effectiveness of the treaty in relation to Newfoundland on passage of legislation by the Provincial Parliament of Newfoundland, the British Parliament, and Congress. VI Miller 667, 734, 737,