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United Nations Charter
It is first contended that the land law has been invalidated and superseded by the provisions of the United Nations Charter pledging the member nations to promote the observance of human rights and fundamental freedoms without distinction as to race. Plaintiff relies on statements in the preamble and in articles 1, 55 and 56 of the charter. fn. 2 [38 Cal.2d 721]
It is not disputed that the charter is a treaty, and our federal Constitution provides that treaties made under the authority of the United States are part of the supreme law of the land and that the judges in every state are bound thereby. (U.S. Const., art. VI) [1] A treaty, however, does not automatically supersede local laws which are inconsistent with it unless the treaty provisions are self-executing. {Emphasis added} In the words of Chief Justice Marshall: A treaty is "to be regarded in courts of justice as equivalent to an act of the Legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract--when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the Legislature must execute the contract, before it can become a rule for the court." (Foster v. Neilson (1829), 2 Pet. (U.S.) 253, 314 [7 L.Ed. 415].) fn. 3
[2] In determining whether a treaty is self-executing courts look to the intent of the signatory parties as manifested by the language of the instrument, and, if the instrument is uncertain, recourse may be had to the circumstances surrounding its execution. (See Foster v. Neilson, 2 Pet. (U.S.) 253, 310-316 [7 L.Ed. 415]; United States v. Percheman, [38 Cal.2d 722] 7 Pet. (U.S.) 51, 58-59 [8 L.Ed. 604]; Jones v. Meehan, 175 U.S. 1, 10-23 [20 S.Ct. 1, 5-10, 44 L.Ed. 49]; Chew Heong v. United States, 112 U.S. 536, 539-543 [5 S.Ct. 255, 256-258, 28 L.Ed. 770]; Cook v. United States, 288 U.S. 102, 119 [53 S.Ct. 305, 311, 77 L.Ed. 641]; cf. Nielsen v. Johnson, 279 U.S. 47, 52 [49 S.Ct. 223, 224, 73 L.Ed. 607].) [3] In order for a treaty provision to be operative without the aid of implementing legislation and to have the force and effect of a statute, it must appear that the framers of the treaty intended to prescribe a rule that, standing alone, would be enforceable in the courts. (See Head Money Cases [Edye v. Robertson], 112 U.S. 580, 598 [5 S.Ct. 247, 254, 28 L.Ed. 798]; Whitney v. Robertson, 124 U.S. 190, 194 [8 S.Ct. 456, 458, 31 L.Ed. 386]; Cook v. United States, 288 U.S. 102, 118-119 [53 S.Ct. 305, 311, 77 L.Ed. 641]; Valentine v. United States, 299 U.S. 5, 10 [57 S.Ct. 100, 103, 81 L.Ed. 5]; Bacardi Corp. v. Domenech, 311 U.S. 150, 161 [61 S.Ct. 219, 225, 85 L.Ed. 98].)
[4] It is clear that the provisions of the preamble and of article 1 of the charter which are claimed to be in conflict with the alien land law are not self-executing. They state general purposes and objectives of the United Nations Organization and do not purport to impose legal obligations on the individual member nations or to create rights in private persons. [5] It is equally clear that none of the other provisions relied on by plaintiff is self-executing. Article 55 declares that the United Nations "shall promote ... universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion," and in article 56, the member nations "pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55." Although the member nations have obligated themselves to cooperate with the international organization in promoting respect for, and observance of, human rights, it is plain that it was contemplated that future legislative action by the several nations would be required to accomplish the declared objectives, and there is nothing to indicate that these provisions were intended to become rules of law for the courts of this country upon the ratification of the charter.
The language used in articles 55 and 56 is not the type customarily employed in treaties which have been held to be self-executing and to create rights and duties in individuals. [38 Cal.2d 723] For example, the treaty involved in Clark v. Allen, 331 U.S. 503, 507-508 [67 S.Ct. 1431, 1434, 91 L.Ed. 1633, 170 A.L.R. 953], relating to the rights of a national of one country to inherit real property located in another country, specifically provided that "such national shall be allowed a term of three years in which to sell the property ... and withdraw the proceeds ..." free from any discriminatory taxation. (See, also, Hauenstein v. Lynham, 100 U.S. 483, 488-490 [25 L.Ed. 628].) In Nielsen v. Johnson, 279 U.S. 47, 50 [49 S.Ct. 223, 73 L.Ed. 607], the provision treated as being self-executing was equally definite. There each of the signatory parties agreed that "no higher or other duties, charges, or taxes of any kind, shall be levied" by one country on removal of property therefrom by citizens of the other country "than are or shall be payable in each State, upon the same, when removed by a citizen or subject of such state respectively." In other instances treaty provisions were enforced without implementing legislation where they prescribed in detail the rules governing rights and obligations of individuals or specifically provided that citizens of one nation shall have the same rights while in the other country as are enjoyed by that country's own citizens. (Bacardi Corp. v. Domenech, fn. 4311 U.S. 150, 158-159 [61 S.Ct. 219, 224, 85 L.Ed. 98]; Asakura v. Seattle, 265 U.S. 332, 340 [44 S.Ct. 515, 516, 68 L.Ed. 1041]; see Maiorano v. Baltimore & Ohio R.R. Co., 213 U.S. 268, 273-274 [29 S.Ct. 424, 425-426, 53 L.Ed. 792]; Chew Heong v. United States, 112 U.S. 536, 541-542 [5 S.Ct. 255, 257, 28 L.Ed. 770].)
It is significant to note that when the framers of the charter intended to make certain provisions effective without the aid of implementing legislation they employed language which is clear and definite and manifests that intention. For example, article 104 provides: "The Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes." Article 105 provides: "1. The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes. 2. Representatives of the [38 Cal.2d 724] Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization." In Curran v. City of New York, 77 N.Y.S.2d 206, 212, these articles were treated as being self-executory. (See, also, Balfour, Guthrie & Co. v. United States, 90 F.Supp. 831, 832.)
The provisions in the charter pledging cooperation in promoting observance of fundamental freedoms lack the mandatory quality and definiteness which would indicate an intent to create justiciable rights in private persons immediately upon ratification. Instead, they are framed as a promise of future action by the member nations. Secretary of State Stettinius, chairman of the United States delegation at the San Francisco Conference where the charter was drafted, stated in his report to President Truman that article 56 "pledges the various countries to cooperate with the organization by joint and separate action in the achievement of the economic and social objectives of the organization without infringing upon their right to order their national affairs according to their own best ability, in their own way, and in accordance with their own political and economic institutions and processes." (Report to the President on the Results of the San Francisco Conference by the Chairman of the United States Delegation, the Secretary of State, Department of State Publication 2349, Conference Series 71, p. 115; Hearings before the Committee on Foreign Relations, United States Senate [Revised] July 9-13, 1945, p. 106.) The same view was repeatedly expressed by delegates of other nations in the debates attending the drafting of article 56. (See U.N.C.I.O. Doc. 699, II/3/40, May 30, 1945, pp. 1-3; U.N.C.I.O. Doc. 684, II/3/38, May 29, 1945, p. 4; Kelsen, The Law of the United Nations [1950], footnote 9, pp. 100-102.)
The humane and enlightened objectives of the United Nations Charter are, of course, entitled to respectful consideration by the courts and legislatures of every member nation, since that document expresses the universal desire of thinking men for peace and for equality of rights and opportunities. The charter represents a moral commitment of foremost importance, and we must not permit the spirit of our pledge to be compromised or disparaged in either our domestic or foreign affairs. [6] We are satisfied, however, that the charter provisions relied on by plaintiff were not [38 Cal.2d 725] intended to supersede existing domestic legislation, and we cannot hold that they operate to invalidate the Alien Land Law.
For what its worth.