Evening star., 1936-01-19


0eoreetown University School OF
Foreign Service.
- ECTION IS of the administra'
tion's neutrality bill, now undel
consideration by Congress
- raises some important questions
as to conflicts between existing urea
ties and neutrality revision. That sec
ton provides that where there is sucf
conflict the President Of the Unitee
States may negotiate with foreign
countries for modification of the treat
ties. Our Government has repeated
" protested against the unilateral alb
rogation of treaties.
The latest statement on this sub
ject was given to the press by Secre'
tary of State Hull on December 5
1885, as a warning to Japan on hel
recent North China activities. Say
ing that respect for treaty obligations
Is most essential, Mr.. Hull reiterated
that this Government adheres to tht
provisions of the treaties to which i
Is a party: he urged other nation!
to do likewise.
This attitude raises some interest
ing df not embarrassing questions II
reference both to our recent neutral
ity policy and the revision now under
consideration. Article of our exist.
ing commercial treaty with 1tal!
(Which is practically identical witt
articles in treaties with a number O.
other nations) contains the following
provisions: Nor shall any prohibi'
tion be imposed on the importation OF
the expectation OF any articles, thu
product or manufacture of the Unitet
States or of Italy, to or from the ter
ritories of the United States or to OF
from the territories of Italy which
shall not equally extend to all Other
nations" As this clause is still rec
ognized by the United States as being
effective. even the existing arms en-
barge Independently of any possibil'
ity of embargoes on raw materialS)
Is an obvious breach on the part o1
the United States of the treaty; our
existing arms embargo applies only tc
italy and Ethiopia and does not equal
" extend to all nations.
Various Aspects Considered.
It would be we'll to examine certain
reasons that might be offered in JUS
tification of this treaty breach. BY
quota and other restrictions affecting
the commerce of the United States
differently from the commerce Of other
countries with Italy. it might be ar
gued that by previous actions Italy
herself so nullified this provision that
1t should no longer bind the United
States. While at first blush this may
seem to the layman sufficient justi-
fication for our actions, an eXamina-
ton of our law and precedents does
not appear to support this position.
Curiously enough. there is direct
case in point involving this principle
and concerning another treaty be-
tween the United States and Italy
It Is the cause celebre of Charlton
versus Kelly" decided by the Supreme
Court of the United States in 1913
The Supreme Court interpreted the
extradition treaty between the United
States and Italy. whereby both ma
tionS agreed to extradite persons ac-
cused of certain crimes, without any
reservation as to handing over their
own citizens. Charlton, an American
citizen, murdered his wife in Italy,
fed to the United States and his ex-
tradition was demanded by Italy.
Because of the wealth and social
position Of the defendant, the case in
those days was as famous as the re-
cent insult case. Charlton's attor-
neys argued that the United States
had no right or obligation to extra
dite him to Italy because Italy herself
had previously violated this treaty by
refusing to deliver up certain of her
own citizens to the United States.
The essence of the defense argument
was that the treaty was annulled by
the previous violations of Italy.
"voidable But Not Void"
Our Supreme Court gave this argu-
ment careful consideration and ex-
pressed its conclusions in the follow
Ing words: If the attitude of Italy
was, as contended, a violation of the
obligation of the treaty, which, in in
law, would have justified
the United States in denouncing the
treaty as no longer obligatory, it did
not automatically have that effect.
II the United States elected not to
declare its abrogation, or come to a
rupture, the treaty would remain in
force. 1t was only voidable, not void:
and II the United States should pre-
fer, 1t might waive any breach which
In Its judgment had occurred and
conform to its own obligations as if
there had been no such breach. That
the political branch of the Govern
ment recognizes the treaty obligation
as still existing is evident by its ac-
tion in this case. The execu.
tive department having thus elected
to waive any right to free itself from
the obligations to deliver up its own
it Is the plain duty of this
court to recognize the obligation to
surrender the applicant as one i'm
posed by the treaty as the supreme
law OF the land and as affordinp ALL
thority for the warrant of extradi-
lion"
AS Is usual in many treaties. Ar
ticle Is of the commercial treaty with
Italy provides specifically how it can
be terminated. It provides termina-
ton IL months after Official notifica-
Ion has been given by one of the
parties of its intention to terminate
The treaty at that time. No such
notification has yet been given. Even
Z 1t were given the treaty would re-
main IN effect for another IL months.
The actions of our State Department
indicate clearly that the executive
branch Of our Government considers
she commercial treaty still in eject |
Today.
Changed Attitude Seen.
That our Government fully appre-
dates the difficulties raised by such
Ieneral provisions prohibiting restric-
ions on exports is evidenced BY its
actions In recent years in inserting
pecial provisions in new treaties max
ng an exception tn reference to war
materials. The latest example of this