Convention between the United States and Canada revising the Convention for the Preservation of Halibut Fisheries of the North Pacific Ocean and Bering Sea. Ratification advised by the Senate March 23, 1937. Convention between the United States and other powers for the preservation and protection of the fur seals and sea otter which frequent the waters of the North Pacific Ocean. Ratified November 24, 1911. General Convention concerning the boundary waters between the United States and Canada (Treaty Series No. 548, 36 Stat. 2454). Ratified by the United States May 5, 1910. EXECUTIVE AGREEMENTS Maritime safety The exchange of notes between United States and Canada in regard to reciprocal exemption of vessels from inspection and the abolition of inspection fees. April and May 1905. Communications Agreement between United States and Canada relative to promotion of safety on the Great Lakes by means of radio. March 1952. Aids to navigation Letters and notes over the period of the last 10 years concerning the use of land at Bona Vista, Newfoundland, as a loran station. This exchange of notes resulted in an agreement for the use of the land for this purpose. Agreement dated March 14, 1947, between United States and Republic of Philippines concerning certain military bases; covered in this agreement, is the authorization for the use of certain sites in the Philippine Islands for loran stations. Exchange of notes between Panama and the United States (Navy and Coast Guard) relating to the use of certain property at Cape Mala, C. Z., as a light station and radio beacon. Conference between representatives of the United States (Lighthouse Service) and Canada (Department of Marine) relative to the coordination of maritime radio beacons between the United States and Canada. Recommended May 18, 1935; became effective December 1, 1935. Notes exchanged between the Untied States (Department of State) and Great Britain (British Ambassador) relative to the maintenance of navigational marks in the vicinity of Mantinella Shoal off the northwest point of the Little Bahama Bank. These aids are maintained by the United States but paid for by Great Britain (1920). Agreement entered into between United States (Department of State) and Canada (Minister of Marine and Fisheries) relative to aids to navigation in the lower Detroit River. May 10, 1911. General Agreement entered into between United States (Department of State) and Canada, as the result of an exchange of notes, relating to the size and number of naval vessels on the Great Lakes (1817) (Treaties and Conventions, vol. 1, p. 628). MEMORANDUM ON THE EFFECT OF SENATE JOINT RESOLUTION 1 AND SENATE JOINT RESOLUTION 43 ON TAX TREATIES Section 3 of Senate Joint Resolution 1 and section 1 of Senate Joint Resolution 43 provide that treaties shall be effective as internal law only through the enactment of appropriate legislation by Congress. This provision would unduly delay the consummation of desirable tax treaties and treaties having tax effects. At the present time, the Department is principally concerned with treaties to reduce international double taxation in the fields of income, estate, and gift taxes. It also participates in consular conventions, the purpose of which is to provided, among other things, for tax treatment on a reciprocal basis of consular officials under Federal and State laws; and in treaties of friendship, commerce, and navigation, to provide, among other things, for the fair and equitable tax treatment, on a reciprocal basis, of our citizens and those of foreign governments. Treaties to reduce international double taxation generally contain reciprocal provisions, which operate to the benefit of our citizens. Thus, such conventions may reduce double taxation by delimiting the basis of taxation, such as by requiring a permanent establishment before one State may tax the business of an enterprise of another State, or by permitting a resident of another State to pay tax on a net income basis in cases like rentals and royalties instead of on a gross income basis, or by setting forth situs rules governing the application of tax in the case of tax on estates or gifts. They may reduce double taxation by exempting or reducing the tax on certain earnings, such as by exempting from tax the earnings from ships and aircraft derived by resident of the other State, or by reducing the tax rate on royalties. Such conventions also permit the reciprocal exchange of helpful tax information and provide for cooperation in resolving double tax problems under the principles of a convention. It would seem undesirable to impair expeditious completion of these treaties. At the present time, treaties for the avoidance of double taxation of income are in effect with Canada, Denmark, Finland, France, Ireland, Netherlands, New Zealand, Norway, Sweden, Switzerland, Union of South Africa, and United Kingdom. Treaties for the avoidance of double tax in the case of death duties are in effect with Canada, Finland, France, Ireland, Norway, Switzerland, Union of South Africa, and United Kingdom. Treaties with Belgium and Greece have been signed and are awaiting ratification. In addition the Department is now engaged in further treaty negotiations with many additional countries. Treaties to eliminate double taxation are carefully scrutinized by the Senate. In many cases public hearings are held thereon and comments of interested parties solicited and received. To require approval of a treaty by the Congress after the Senate has already consented thereto would necessarily slow down and perhaps seriously hamper the treaty process in this area. The Congress has sanctioned the use of treaties to modify internal revenue law. Thus, section 22 (b) (7) of the Internal Revenue Code excludes from gross income and hence exempts from income tax "income of any kind, to the extent required by any treaty obligation of the United States." Moreover, Congress has consistently recognized and approved the modification of internal revenue laws by specific provisions in the revenue acts amending the Internal Revenue Code. These provisions make inapplicable such amendments to any case where they would be contrary to any treaty obligation of the United Sates. See, e. g., section 615, Revenue Act of 1951. Section 1 of Senate Joint Resolution 43 also provides that "a treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty." The tax provisions of treaties of friendship, commerce, and navigation, and consular conventions affect the tax status of nationals, and consular officers of other countries under State laws. Under the provisions of section 1 of Senate Joint Resolution 43, the tax provisions of such conventions may not be valid in the absence of further State ratification. The requirement of State concurrence to treaties may subordinate our national interests in this field to the local interests of a particular State. In any case, it would unduly delay consummation of such treaties, and may discourage their negotiation. Mr. TUTTLE. Thank you very much. The CHAIRMAN. I would like to ask Judge Phillips a few questions. STATEMENT OF HON. ORIE PHILLIPS, CHIEF JUDGE, UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT-Resumed The CHAIRMAN. Judge Phillips, I showed you three treaties that are pending before the Foreign Relations Committee, and I would like to have your opinion as to, not what you think about treaties themselves, but how you view them and view the statements that have been made before this committee with which you are familiar? Judge PHILLIPS. Senator, I think I would be presumptuous to have any considered judgment about these, but in the very limited time there is one striking thing in one of these treaties. I had always supposed that when we sent a military force anywhere we dealt with them under military jurisdiction and if they committed an offense we tried them. I have handled habeas corpus cases coming up challenging military convictions while our soldiers were in France and Germany, and I think that is the place to try our own boys if they violate a law, but this treaty with some limited exceptions agrees that the military forces, the soldiers and their dependents, with certain exceptions shall be surrendered for trial to the country that they are quartered in, and it undertakes to give them certain protection-prompt and speedy trial, knowledge of specific charge in advance, confrontation of witnesses, provision for counsel, interpreter, and the right to communicate with a representative of his own government. Well, if we are going to undertake to protect them I think the first thing we ought to do is to say that we shall have a jury trial. In the second place, I think we should say that they shall have the right not to be convicted upon an involuntary confession. It may be that we should surrender these people to the local courts for trial, but if we are going to undertake to protect them, let us put in the most important protection that could be given them and that would be a jury trial. The CHAIRMAN. Judge, would you not say that under that treaty there a man arrested, for example, in Yugoslavia, one of our soldiers in there, in a Communist country, or even in some other country, would be presumed to be guilty and have to prove his innocence? Judge PHILLIPS. That would be true in France. The CHAIRMAN. Yes; it would be true in France. Senator SMITH. The effect of that would be to take an American boy with all the heritage, freedoms that we have known, the right of trial by jury, and so forth, and perhaps against his will transport him across the seas, put him in France to help fight for that nation's liberty, and then if he should be involved in some offense, perhaps trivial, he would be turned over to the other nation for trial in a manner that is wholly incomprehensible to the average American citizen? Judge PHILLIPS. The only exception I see is an offense solely against property or security of the state, or offenses solely against the person or property of another member of the force of a civilian component of that state, or offenses arising out of any act or omissions done in the performance of official duties. Other than that, we say we will surrender them, let them try them, and we undertake to protect them and we do not protect them. The CHAIRMAN. Mr. Nash, who testified this morning, argued yesterday before the Foreign Relations Committee for the adoption of this treaty. Judge PHILLIPS. Might I make one supplementary statement? Judge PHILLIPS. This gentleman that followed me said that he agreed, as I did, with the late Chief Justice Hughes that there was an implied limitation on the treatymaking power that would prevent these treaties that we have been saying were dangerous, as impinging upon the rights of the individual citizen and on the reserve powers of the States. I think much can be said in favor of such a limitation, but the trouble is that the executive department and the State Department have clearly indicated that they recognize no such limitation, and they are proposing treaties and they are proposing to do things that violate any thought of any such limitation. If I could have the last say I would say the limitation was there, but the difficulty is that the executive department has absolutely denied by their acts and by their statements that any such limitation exists, and that is why I say we have to do something about it in the way of limiting the power. I do not want to go away from this room with the idea that I admitted that the limitation is so well established that nothing need to be done. I think the limitation has been thrown in the ashcan, as far as I am concerned, by the agents of Government. Senator BRICKER. The Justice did not assert that there was a limitation; he said there might be. Judge PHILLIPS. There might be, and he even expressed doubt. The CHAIRMAN. Mr. Carl B. Rix, member of the peace and law committee of the American Bar Association, has a supplementary statement. You appeared before us on February 18. ADDITIONAL STATEMENT OF CARL B. RIX, VICE CHAIRMAN, COMMITTEE ON PEACE AND LAW, AMERICAN BAR ASSOCIATION Mr. Rix. Thank you. The CHAIRMAN. We will be delighted to have you testify further. Mr. Rix. I filed a supplemental statement which was prepared before the testimony of the Secretary of State, and the Attorney General. By coincidence, the supplemental statement covers several of the subjects which they discussed. It is significant that in neither of the statements was any attention paid to the outstanding effect of the Migratory Bird case, that of conferring on Congress undelegated and unenumerated powers to legislate. It may interest you to know that when the Migratory Bird legislation had been declared unconstitutional by the courts, the duty devolved upon the Solicitor General of the United States to determine whether or not an appeal should be taken, and we have it upon the statement of the Solicitor General of that day, one of the most eminent lawyers who has ever occupied that position, that he became convinced that the appeal would not be decided in favor of the Government, so he walked across the street to the Secretary of State and put the situation before him and then outlined to the Secretary of State a perfectly constitutional method and a perfectly constitutional process of government by which the same result could be obtained, and that was by securing a treaty with Great Britain and the passage of the Migratory Bird Act thereafter. That suggestion was very well received and it was no sooner said than done. The subsequent act was passed and it went before the Supreme Court of the United States and is now referred to as the Migratory Bird case. Gentlemen, that was not the creation of anything unconstitutional. It was a process which had been in our Constitution ever since it was drawn, and so far as we know that was the first time that that constitutional process was used, so that we have never made any charge that anything was done in connection with the Migratory Bird case which was in any way unconstitutional. However, what these gentlemen do not tackle and did not tackle yesterday and the day before was the unfortunate result of what the eminent Solicitor General of the United States did in making his suggestion. On that has flowed the doctrine which we heard discussed here today by these witnesses, that because of the decision of the United States Supreme Court in the Migratory Bird case the way is open through constitutional processes to enactment of new legislation, of legislation which creates undelegated and unenumerated powers without limit except as to the scope of the treaty in the Congress of the United States. In other words, it has created, gentlemen, two bodies of law under the Constitution, one, enumerated powers, delegated powers, and the other unenumerated and undelegated, dependent only upon the scope and effect of the treaty. These gentlemen have challenged us continually and we have heard it all the time that we can point to no treaty in the history of the United States which was a bad treaty. I do not say that this is a bad treaty in itself. The purpose was honorable and people wanted to conserve their wildlife. As Justice Holmes said, they wanted to preserve the food supply of the country and most of the food supply is in the lockers of the hunters, or a few of them, of this country. Possibly the Secretary of State up on his island retreat is one of them; I do not know, but when we talk about the conservation of food supply as a basis for the Migratory Bird Act, I think and I think you know that Justice Holmes must have had his tongue in his cheek when he talked about it. We come right down to this, and that is where I challenge the statement of the Secretary of State and my friend, the Attorney General: That no treaty has had a bad effect, because I believe that the creation of this unparalleled authority in Congress to legislate on the subject of unregulated or undelegated and unenumerated powers has changed our form of government. We are living today under a system of government not based upon the Constitution of the United States, but on undelegated and unenumerated powers under which Congress now has the authority to act. Here is the way it has operated in actual effect. I will describe that in a minute. Second, I want to take up the statement of the Attorney General that article 56 of the charter of the United Nations is obligatory. Article 56, which I shall read to you in a few minutes, follows the article 55 which deals with the five fields of human endeavor, and as we have pointed out, which were to be covered by the Treaty on Human Rights-social, cultural, economic, civil, and political rights. As I said the other day, if there is anything in life that cannot be comprehended in those five purposes, I do not know what it is. It covers everything from the cradle to the grave, and possibly beyond. |