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mendations rather than treaties, whereas, in 1948, the joint resolution accepting the amended ILO constitution bound the United States to consider conventions as conventions.
The fact is that under both the ILO constitution as it was in 1934 and the amended ILO constitution as it stands today, nothing adopted by the ILO is anything more than a recommendation for the consideration of this Government through its normal constitutional procedures. In 1934 Congress was fully aware that the ILO was adopting conventions which would be presented to this country for consideration. This is made clear by the House report on Resolution 43, 73d Congress, by virtue of which the United States became a member.
The House report on the resolution contains the following statement :
"The obligations of membership are simple and limited. The obligation is to participate in the exploration of social problems and to exchange information in regard to them. The acts of the conference are proposals for action and as such must be submitted to the member countries for further action. Any agreement or resolution must go back to the governments in the same way as a treaty prepared by any international conference. In the case of the United States such treaty would have to be acted upon by the Senate. This Government would be the sole judge as to the procedure that it would follow in each case. The advantage of full membership lies in the right to vote at the conference, right to propose subjects for discussion or to object to the inclusion of any subject matter for discussion" (H. Rept. 2006, 73d Cong., 2d sess. (1934)).
Under both constitutions, if the ILO instrument is in the forın of a convention and that convention is considered in the United States to be appropriate for action by the Federal Government alone, then this Government considers whether or not it wishes to ratify the convention. There is no obligation to ratify.
I have already discussed the provisions of the present ILO constitution dealing with matters considered appropriate, in whole or in part, for action by the States. In that case the United States does not even consider them for ratification.
With respect to recommendations, the United States need only refer them to the appropriate authorities, Federal or State, or both, for such action as they may consider appropriate.
The essential similarity of the requisites of membership under the old and new ILO constitutions is made clear by an exchange between Senator Millikin and the late Senator Thomas, in the debate prior to the passage of the joint resolution accepting the amended constitution in 1948. Senator Millikin said:
“Mr. President, reserving the right to object, I inquire if there is anything in the new constitution that fastens any obligation upon us other than to consider recommendations and recommended conventions."
Senator Thomas replied:
“There is no change at all in the organization of International Labor Organization through the new constitution. Every recommendation they make is to be submitted to the member states, and the states will approve them or reject them. There is no power at all in the International Labor Organization except the power of recommendation. It does recommend the consideration of treaties.
“There is one provision in the amendments which makes it possible, in a state such as ours, which is a federated state, where the jurisdiction in regard to the recommendation rests in the state, for the Federal Government to pass on the recommendation to the individual States. But there is merely a recommendation, and nothing but information is sent."
The above legislative history assures my firm belief that no threat to the rights of American citizens comes from ILO conventions. They serve a useful purpose and legitimately set recommended standards for matters admittedly within the domestic jurisdiction of the members of the ILO.
Section 4 of Senate Joint Resolution 1 and Senate Joint Resolution 2 relate to executive agreements and thus would have no effect upon our ILO activities. I will discuss these provisions, however, as they affect our migrant labor agreements
Senate Joint Resolution 43 proposes an amendment to our Constitution (1) depriving any treaty provisions of force and effect if they conflict with a provision of the Constitution, (2) depriving a treaty of effect as internal law. except through legislation which would be valid in the absence of a treaty, and (3) declaring that executive agreements shall be subject to the same limitations and to regulation by the Congress. In discussing the ILO, with particular reference to Senate Joint Resolution 1, I believe it has become apparent that Senate Joint Resolution 43 seems superfluous insofar as our participation in the ILO is concerned.
In view of the nature of some of the charges made about specific conventions, I feel it incumbent upon me, where such charges are inaccurate, to point out the inaccuracies to this committee, for the purpose of indicating that many of the fears which have been given as reasons for supporting a constitutional amendment are unjustified.
Various statements have been made with regard to the maternity protection convention, adopted by the ILO in 1952. I would like to point out that contrary to the impression given, the subject matter of this convention was not new. The maternity protection convention was adopted as convention No. 3 at the first ILO Conference in 1919. I quote from testimony before the committee, as follows: "In its earlier years the ILO devoted its efforts to matters dealing directly with labor and did excellent constructive work. Its objective was that of endeavoring to raise living standards of employees all over the world, get them better working conditions, fuller recognition of their rights, etc.” The standards established by convention No. 103 rather closely parallel those originally set forth in convention No. 3.
I would like also to comment on one other point made before this committee in connection with the maternity protection convention. The following phrase was quoted from the convention : "In no case shall the employer be individually liable for the cost of such benefits due to women employed by him," indicating that this would outlaw arrangements made through collective bargaining. I disagree with that conclusion. It was not the purpose of that provision to outlaw such arrangements, nor would it have that effect. Its purpose was to prevent an employer from being required to contribute to a national insurance fund on the basis of the number of mothers in his employ, or from being required by law to pay benefits directly. Such requirements would provide an economic basis for discrimination against the employment of women. In many countries women are employed because employers can hire them for substantially less than they have to pay men. The fact that 18 countries ratified the 1919 convention on maternity protection is an indication that a problem does exist in some countries, and that legislation protecting working mothers and their children in those countries is not an empty gesture.
The second convention which has been referred to frequently is No. 102, on minimum standards of social security. It has been charged that the convention would impose socialized medicine on the United States. Of course, the convention will not be submitted to the Senate as a treaty, since it deals with a number of matters appropriate in this country for action by the States rather than by the Federal Government. Under these circumstances, the supposed threat which it offers disappears.
The statement has been made that convention No. 87 concerning freedom of association would, if ratified, impose the closed shop on the United States. However, this convention does not deal, one way or the other, with union security. The convention merely would recognize the right of workers and employers to join organizations of their own choosing.
It has also been asserted that convention No. 88 might federalize the Employ. ment Service. It is quite clear in my opinion that it would not result in the federalization of the Employment Service. In fact, the language in the convention which has been quoted as possibly producing that result, which is from article 2, “The Employment Service shall consist of a national system of employment offices under the direction of a national authority," closely parallels the language of the Wagner-Peyser Act. That act established the United States Employ. ment Service in the Department of Labor "in order to promote the establishment and maintenance of a national system of public employment offices." Section 3 (a) of the act provides, in part, “It shall be the province and duty of the Bureau to promote and develop a national system of employment offices." As a matter of fact, at the instance of the United States, article 2, which had originally contained the phrase "under the control of a national authority' was amended by the conference committee which drafted the convention, to read “under the direction of a national authority" in order to make clear that our present Federal-State system would meet the provisions of the article.
I can assure you that I will always give most careful consideration to ILO conventions when I am making recommendations to the Secretary of State and the President concerning possible action to be taken by the administration and the Congress. I am also sure that they, likewise, will act only in the best interests of the country. Finally, I need hardly remind you that any request for consent to the ratification of a convention is at all times subject to the searching inquiry of appropriate committees of the Senate, to full floor debate and to the requirement of a two-thirds vote under our Constitution. I submit that these steps under present law provide us with the soundest possible safeguards against hasty and ill-advised action.
In summary of my explanation of the various resolutions as they affect our ILO activities, I desire to emphasize that, despite the citation by others of ILO conventions as demonstrating a need for constitutional amendments, our membership in the ILO appears to furnish no justification whatever for the proposals being considered by the committee.
MIGRANT LABOR AGREEMENTS
In concluding, I wish to touch briefly upon the effect of Senate Joint Reso lutions 1, 2, and 43 on Executive agreements involving the Department of Labor.
For the past 5 years the Department of Labor has participated in the negotiation and execution of Executive agreements entered into with the Republic of Mexico governing the temporary admission of Mexican nationals to the United States for employment in agriculture. Prior to 1949 somewhat similar agree ments were negotiated and carried out by the War Manpower Commission and the Department of Agriculture. The current agreement with Mexico, the migrant labor agreement of 1951, as amended, was entered into pursuant to Public Law 78, 82d Congress, approved July 12, 1951. This act by no means encompasses all of the aspects of the migrant-labor agreement. It was enacted basically to confer specific authority needed as a practical matter to consummate the agreement, such as payment by the United States of certain expenses incident to the selection, transportation, and recruitment of Mexican nationals and to authorize the United States to guarantee to the workers certain contractual obligations in the event of default by an employer.
The migrant labor agreement is basically an operating agreement spelling out at the same time the terms and conditions under which Mexican nationals may be employed in this country.
Senate Joint Resolutions 1, 2, and 43 seem to contemplate legislation closely circumscribing the authority of the executive branch of the Government in the pegotiation of international Executive agreements. On the basis of prior experience with these Executive agreements, the requirements of these resolutions would seriously impede the negotiation of such agreements and make them for all practicable purposes inoperative.
Of particular importance is the fact that in agreements dealing with the acquisition of labor to harvest perishable crops, the executive departments responsible for the negotiation and execution of the Executive agreements need to have authority quickly to review, amend, or add to such agreements when the exigencies require action. The limitations imposed upon the executive branch by Senate Joint Resolutions 1, 2, and 43 with respect to negotiation of Executive agreements is equally applicable to negotiations of amendments.
It is recognized, of course, that the Congress now has, and properly so, the authority to take legislative steps to render void any provision of an Executive agreement. The right of Congress to exercise a veto, however, is far different from the situation which would obtain under these resolutions where apparently the agreement would have no force and effect until and unless Congress acted affirmatively.
The requirement of these resolutions for confirming legislative action leaves the door open, from the conclusion of the conference to the time legislation is enacted, for endless changes, retractions, repudiations when either Government is unable to make firm commitments but only proposals which it will recommend to its legislative body. Prior experience demonstrates that this is the inevitable result whenever there is any appreciable delay in formal acceptance by either government in the agreement reached across the conference table.
I have heretofore referred to section 2 of Senate Joint Resolution 1. This section would appear to affect some aspects of our operations under the present agreement with Mexico. It states that: “No treaty shall authorize or permit any foreign power * to supervise, control, or adjudicate rights of citizens of the United States within the United States enumerated in this Constitu.
No citizen of the United States is subject to the provisions of the migrant labor agreement of 1951, as amended, unless he voluntarily contracts to employ Mexican workers brought into the United States under such agreement. In general, the agreement contemplates that neither Government shall act unilaterially with respect to any of the provisions in the agreement. In cases of disputes under the agreement, the final determinations with respect to the rights of the American employers, as well as the rights of the Mexican workers, are jointly made pursuant to article 30 of the agreement by the Secretary of Labor and the representative of the Mexican Government in Washington. To this extent rights of citizens of the United States within the United States may be considered as adjudicated by a “foreign power" within the meaning of section 2 of Senate Joint Resolution 1.
It has always been difficult to reach satisfactory agreements in connection with the migrant-labor program. There seems to be little doubt that amendments to the Constitution or legislation such as are proposed would add greatly to this difficulty or make it impossible to reach any satisfactory migrant-labor agreements with respect to farm labor.
STATEMENT OF GEORGE A. FINCH, SR., MEMBER, COMMITTEE ON
PEACE AND LAW, AMERICAN BAR ASSOCIATION
Senator Smith. Mr. Finch, now I will ask you not to be too modest, but identify yourself. Of course I know who you are, what you have done and what you have been doing, but the record will not carry it unless you tell us now about your qualifications and your activities and do not be modest.
Mr. Finch. Mr. Chairman, and members of the subcommittee, I am appearing in this hearing in my capacity as a member of the committee on peace and law of the American Bar Association. I might say I was born in the city of Washington and I hold a law degree from Georgetown University.
I served in the Department of State under Secretaries Elihu Root and P. C. Knox. During that period I was secretary to the American Commission to Liberia, visited that country and also the French territories on the south and the British territory on the north.
I was assistant legal adviser to the American commission to negotiate peace in Paris in 1919 and accompanied President Wilson on the George Washington.
I visited Japan, Korea, Manchuria, and China in 1929. I met Generalissimo Chiang Kai-shek several times, also Dr. Sun-Fo, the son of Dr. Sun Yat-sen, the founder of the Chinese Republic. I also met Mr. Yoshida, who is now the Prime Minister of Japan and practically all of the leading officials of the Japanese, Manchurian, Chinese, and Korean Governments at that time.
Senator WATKINS. Did you help write the Treaty of Versailles !
Mr. Finch. I was an assistant legal adviser. My principal contribution was to prepare the memorandum which told President Wilson there was no legal basis for hanging the Kaiser for starting the war.
Senator Smith. That is the reason he was not hanged, I gather! Mr. FINCH. I will not make any further statement than I have.
Senator BRICKER. They did not pay any attention to your brief, did they?
Senator DIRKSEN. That was one court that did not meet and that was one set of judges that was not appointed.
Mr. Finch. That is right.
I have been delegate to several inter-American conferences. I have been around to South America several times, been to Canada, Mexico, and Cuba, visited Europe several times, the countries of Central Europe and Great Britain.
I have some other titles besides being a lawyer. I am a professor of international law of the Georgetown School of Foreign Service. I am president of the Inter-American Academy of Comparative and International Law of Habana, Cuba. I am a member of the Curatorium of the Academy of International Law at the Hague. I have lectured at the Hague. I have lectured at the University of Michigan, Washington, at Seattle, and McGill University in Canada.
I am also the editor in chief of the American Journal of International Law.
Senator DIRKSEN. What do you do with your spare time?
Mr. FINCH. I prepare memorandums and testify before the Senate Judiciary Committee.
Senator SMITH. What else?
Mr. Finch. Well, I am a member of several organizations. I am a member of the executive committee of the American Institute of International Law. I will refer to Who's Who in America for anything that I have forgotten to tell you.
Senator Watkins. Have you the right to practice law anywhere outside the United States ?
Mr. Finch. No; I have not. I do not have the right to practice law anywhere except the District of Columbia. I cannot even practice law in Maryland where I live.
Senator SMITH. Let the record show, lest someone might think Mr. Finch was bragging, that this information was insisted upon and extracted from him by the committee.
Mr. Finch. Mr. Chairman, in view of the fact that I have had some oportunity to make some observations outside of this country as well as within it, I want to make my position perfectly clear at the outset.
Senator SMITH. Before you begin that, there is one thing the chairman would like to ask you to do and I imagine the other members of the committee would like to hear: this morning did you hear Governor Stassen's testimony !
Mr. FINCH. I heard Governor Stassen's testimony.
Senator Smith. Now, his ideas of some of the legal principles involved seem to be somewhat at variance with some of the ideas of some members of the committee. Now, I would like for you to discuss frankly and freely any consideration you may have given to. Governor Stassen's opinion and bearing in mind all we are trying to do is to reach a proper conclusion about these particular matters because you are the man who has had so much experience that you should be able to give us an answer to the questions that he raised.
Mr. Finch. Mr. Chairman, as I remember his testimony, and I have a copy of his paper here, but I will not take the time to look it up, I think that Governor Stassen, when he came to talk about treaties of friendship and commerce and navigation, was a little weak on his understanding of what the Congress of the United States could do under the interstate and foreign commerce clause. I am going to discuss that in a little detail in my paper, so I will not elaborate at this time.
I may say something more about what he said. I think also that his fears about the effects of the amendment of the American Bar Association, which I am speaking principally to, are not well taken. I think most of the argument he made omitted the fact that his