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construction, like the one discussed above, is designed to effectuate the intent of Congress. It is based on the theory that when Congress enacts a statute it is aware of the requirements of international law, and does not intend to violate it. Accordingly, in construing the Antidumping Act of 1921 it might be proper to assume that Congress intended it to conform to the requirements of international law in existence at that time, but not to an executive agreement made 46 years later.

7 Continued

in the islands, is, during war, a profitable business,
which congress cannot be intended to have prohibited,
unless that intcnt be manifested by express words, or
a very plain and necessary implication. It has also
been observed, that an act of congress ought never to
be construed to violate the law of nations, if any other
possible construction remains, and consequently, can
never be construed to violate neutral rights, or to
affect neutral commerce, further than is warranted
by the law of nations as understood in this country."
6 U. S. (2 Cranch) 64, 118.

The minority cites Lauritzen v. Larsen, 345 U. S. 571 (1953), where the Court held that the Jones Act did not cover an alien seaman on an alien ship in alien waters. The Court noted that the usual rule of international law is that the law of the flag state governs the internal affairs of a ship. In this connection the Court said,

"Congress could not have been unaware of the necessity of construction imposed upon courts by such generality of language and was well warned that in the absence of more definite directions than are contained in the Jones Act it would be applied by the courts to foreign events, foreign ships and foreign seamen only in accordance with the usual doctrine and practices of maritime law." 345 U. S. 571, 581.

45

But even if the rule were otherwise applicable, it seems clear that the Code is not the type of "international law" which

will require a harmonious construction.

In this connection the

Restatement defines international law as "those rules of law appli

cable to a state . that cannot be modified unilaterally by it."

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Restatement, § 1. This definition appears to embody the usual

distinction made between customary and conventional international Continued

Finally, the minority cites McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U. S. 10 (1963), a case in which the Court held that the National Labor Relations Act was not intended by Congress to cover alien seamen on foreign flag vessels. In holding that U. S. law did not apply, the Court concluded,

"We therefore conclude,
that for us to sanction the
exercise of local sovereignty under such condition 'in this
delicate field of international relations there must be
present the affirmative intention of the Congress clearly
expressed!" 372 U. S. 10, 21-22.

In each of these cases the conflict was between a possible interpretation of an Act of Congress and a long established rule of customary international law, and in each case the Court concluded that Congress should not be presumed to have intended to violate the rule in the absence of some clear expression of that intent. Accordingly, the Court chose a construction which brought the Act into conformity with the rule.

I find nothing in these cases which supports the proposition that the interpretation of an Act of Congress is to be limited by an executive agreement entered into later in time.

law.

10/

Since the Code is an international agreement (conventional international law), it can be unilaterally modified by any signatory nation by ceasing to be a party to it. Accordingly, it seems clear that the Code is not "international law" as that term is used in the Restatement, and comments therein to the effect that statutes are to be construed in a manner consistent with international law are not applicable.

Conclusion

In my judgment the following conclusions about the relationship between the Act and the Code appear to be warranted:

10

(1) The Code does not have the force and effect of law

in the United States.

(2) There is no rule of statutory construction which
requires the Commission to construe the Act to be
in harmony with the Code.

Thus, Hackworth states,

"Conventional international law, so-called, is not to
be confused with customary international law. While a
convention--such as certain of the Hague conventions--
may, and often does, embody well-established international
law, it may at the same time include provisions which are
not established international law but which the contracting
parties agree should govern the relations between them.
The convention as such is binding only on the contracting
parties and ceases to be binding upon them when they cease
to be parties to it. Those provisions of a convention
that are declaratory of international law do not lose
their binding effect by reason of the abrogation of or
withdrawal from the convention by parties thereto, because
they did not acquire their binding force from the terms
of the convention but exist as part of the body of the
common law of nations. Provisions of conventions that
are not international law when incorporated therein may
develop into international law by general acceptation by
the nations." 1 Hackworth, Digest of International Law,
17 (1940).

A final question is whether the United States will be in violation of the Code, if the Commission continues to apply the Act, but this question must ultimately be answered by the Contracting Parties. If the results reached by the Commission in applying the Act after the Code goes into effect internationally are very different from those which the Contracting Parties expected under the Code, presumably the Contracting Parties will complain to the President that the United States is not abiding by the Code.

At that time questions of how and whether to amend the Act or the Code may have to be faced.

Separate Views of Chairman Metzger and Commissioner Thunberg

S. Con. Res. 38 upon adoption would resolve, "That it is the sense of Congress that

"(1)

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the provisions of the International Antidumping Code, signed at Geneva on June 30, 1967, are inconsistent with, and in conflict with, the provisions of the Anti-Dumping Act, 1921; "(2) the President should submit the International Antidumping Code to the Senate for its advice and consent in accordance with article II, section 2, of the Constitution of the United States; and

"(3) the provisions of the International Antidumping Code should become effective in the United States only at the times specified in legislation enacted by the Congress to implement the provisions of the Code."

Paragraph (1) of S. Con. Res. 38 would resolve that it is the sense of the Congress that the provisions of the International Antidumping Code, signed at Geneva on June 30, 1967, "are inconsistent with, and in conflict with, the provisions of the Anti-Dumping Act, 1921". The "Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade" of June 30, 1967, was accepted on that date by signature on behalf of the United States of America, to enter into force for each party accepting it on July 1, 1968 and is referred to as the "International Antidumping Code".

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