Evening star., 1936-01-19


international law a treaty is a con-
tract. which, like all other contracts.
cannot be changed by the action OF
one party acting alone. On the other
hand, Under the domestic law of the
United States, treaties and acts of
Congress are on parity. Neither is
superior to the other and the deter
mining factor is which Is the latter
in point of time. Therefore, under
our domestic law, Congress can pass
acts which unilaterally abrogate trea-
ties. Such congressional action Is
binding on our courts. This, however,
does not remove the international
binding effect of the treaty without
the consent of the other nation. Our
government has repeatedly recognized
this principle. And, furthermore Mr..
Hull has just reiterated our tradi-
tional policy protesting against uni
lateral abrogation of treaties, whether
or not it is done under the provisions
Of the domestic law of the other ma
tions concerned. 1t might be embar-
RAISING for our State Department to
offer as justification for unilateral
abrogation the powers of our domes-
tic Congress, when we protest against
other nations following a similar pro-
cedure.
Equal Treatment Specified.
While the existing treaty with Italy
(as we'll as with other nations) recog-
nizes that when one of the parties is
| o hn1l 0It TO; {n1
to prevent contraband from reaching
its enemy, it is clearly understood that
this does not give the other party
the neutral-the right to prohibit the
free expectation of goods, unless they
are equally prohibited to all other
nations, without any reservation as
to whether they are belligerent or
neutral. This is because of the equal
treatment clause. of which article
of the Itahan-American treaty is a
normal example.
Remembering that the laws of con-
traband confer special rights on bel
ligerents to interfere with neutral
commerce (without giving to the
neutral any right to restrict exports
to some, but not all nations, where
there is a most-favored- nation treaty
In exiStence) it is well to examine GER
tain principles of contraband and
special facts connected with our treaty
with Italy.
There never has been any effective
agreement as to what is or is not con-
traband. Our treaty with Italy, recog-
nizing this difficulty, makes special
provisions of its own In article IS of
that treaty it is stated that THE liber-
ty OF navigation and commerce Sc
cured to neutrals by the stipulations of
this treaty shall extend to all kinds
OF merchandise. excepting those only
which are distinguished by the name
OF contraband of war And, in order
to remove all causes of doubt and mis-
understanding upon this subject. the
contracting parties expressly agree
and declare that the following articles,
and no others, shall be considered as
comprehended under this denomina-
tion." The article thereupon lists
various articles which are essentially |
implements of war. 1t thereby ex-
cludes all raw materials such as oil |
and cotton.
Argument Untenable.
Here again it has been urged that |
these definitions no longer hold. |
because during the World War Italv |
served notice that she would not be |
bound by them and extended her con-
traband list to include many of the
excluded articles. This argument.
while plausible. seems legally unten- |
able Tor exactly the same reasons |
offered above in relation to the most
favored-nation clause. AS matter of |
TACT, during the World War we did not |
elect to consider the treaty annulled |
because of the announced violation of
Italy and there is no indication that |
even up to the present moment has our
Government elected to consider the
treaty not binding on the United
States.
In these days, when it is becoming
more and more the practice to re-
examine acts of Congress and execu-
tive acts with purpose of determining
whether they are legal or not, it is
probable that in connection with our
new neutrality policies, our Govern
ment will give adequate consideration
to the legal points sketched in this
article and which may be summarized
as follows:
Our present arms embargo against
Italy seems to be q breach of an
existing treaty.
Extension of the restrictions to oil,
cotton and other materials may be
an even more obvious breach.
Under our domestic law Congress
undoubtedly has the power to place
such restrictions. This, however, does
not remove the international binding
effect.
Unless We are ready to engage in
the same unilateral abrogation of
treaties which we have protested in
the case of other nations, the legal
solution seems to be to carry out
promptly the terms of section Is of
the administrations neutrality bill
and enter upon negotiations with other
nations for modification or termina-
ton OF conflicting treaties.
In case we are to terminate treaties
legally, we should follow the pro-
cedure provided in those treaties as
to termination.
In the case of Italy, If notice of
termination were served now (as it
could be- the treaty would not actually
go out Of effect until one year hence.
Large Scale Action Seen.
It might we'll be argued that f1aprant
violations of a treaty give the other
the right t. immediate termi-
nation. II we care to use this princi-
pie and at the same time be con- ,
sistent and refrain from DANGEROUS ,
discrimination, we shall have to en-
bark on treaty denunciation on a
large scale. As the voluminous rec ,
ords show clearly, many leading ma
tions can be charged with fragrant
violations Of their treaties with us,
involving trade determinations, ex- I
tension of the confro hopd 1{ct erA .