RELATIONS OF INDEPENDENT DEPARTMENTS. 435 



255. Obligation of the Treaty-Making Power Itself as to Future 

 Action. 



The treaty power cannot bind its own future action. Clearly 

 it can repeal one treaty by negotiating a new one with the same 

 party. But if it concluded a conflicting treaty with a different 

 party, a more complicated situation arises. Under constitutional 

 law, unquestionably the more recent treaty prevails though the 

 courts ought to reconcile the two treaties by interpretation if pos- 

 sible. Under international law, however, the older treaty prevails 

 on the theory that a treaty violative of the rights of an innocent 

 third party is against the policy of international law. Therefore, 

 although the treaty power is not legally bound to respect its earlier 

 treaties, it ought to do so. The obligation is an understanding 

 which has generally been observed. The Jay treaty with Great 

 Britain in 1794 was alleged to violate certain provisions of the 

 French treaty of 1778; and the Panama treaty of 1903 was alleged 

 to violate provisions of the Hay-Pauncefote treaty with Great 

 Britain of 1901, but they were not clearly proved to do so.^" 



Treaties may require subsequent action by the treaty-making 

 power to give them effect. Such is the case with certain general 

 arbitration treaties which require the conclusion of a special treaty 

 or compromis for submission of each particular controversy coming 

 under the general arbitration treaty. Such would also be true of 

 the treaty of Versailles, which urges the conclusion of treaties 

 upon such subjects as the maintenance of fair labor conditions, the 

 maintenance of freedom of communications and transit, the pre- 

 vention and control of disease, etc. Such provisions as this do not 

 legally bind the treaty-making power, but undoubtedly the President 

 and Senate ought to make due eft'orts to conclude such treaties 

 when the occasion arises. 



256. Acts of the Treaty-Making Powers: Obligation of Congress. 

 Treaties may require action by Congress to give them effect. 



Where executive and judicial action alone is sufficient to give 

 treaties effect they are said to be " self-executing," but an exact dis- 

 39 Wright, Conflicts between International Law and Treaties, Am. Jl. Int. 

 Law, II : 57^579- 



PROG. AMER. PHTL., SOC. , VOL. LX., CC, MARCH I5, I922. 



