boundary is but 52 sea miles from a military foreign power. Puerto Rico and the Virgin Islands are important in Carribean defense, and we already have seen the role of Hawaii and the more westerly islands in our Pacific defense. We may well wish to have large allied military installations on our soil and furnish bases and related authority to foreign powers, or to NATO. In order to man and operate such a base, what rights, and what cession of our sovereignty, would the foreign authority need to receive?

In connection with our base in Newfoundland, we sought and received full rights to supervise and control the base area. We were accorded the right to try British subjects committing offenses within the base, and the right to refuse permission to have local civil or criminal process served therein. Our automobiles can use the roads in Newfoundland regardless of local law and without payment of tax or fee, subject only to our own regulations. We get special exemption from customs and taxes, and many other rights. Some or all of these rights we were also accorded at other bases, such as those at the Bahamas, Philippines, Saudi Arabia, Iceland, and Greenland. Exclusive jurisdiction to try our own soldiers for criminal offenses in an allied country is a power we have sought and obtained abroad from the English, Chinese, Indians, and French among others.1

Yet section 2 would prevent our vesting in an ally or joint body rights such as we have found it necessary to obtain abroad. It would be a bold man indeed who would say that never in our future history should we wish to grant some rights to an ally to establish and administer a base on American soil. How would the British have fared in World War II if they had been hampered by a constitutional restriction such as section 2, adopted, let us say, at the time of Queen Victoria's Diamond Jubilee in 1897, when Britain stood at an apex of world-wide power?

Section 2 would impair our power to make agreements to deal with aggression, such as the provisions of the United Nations Charter authorizing the United Nations Security Council (subject to our right of veto) to take measures for this purpose. Any agreement of this type would necessarily involve provisions whereby the Council or other similar body would decide whether action should be taken and what kind of action. Some of the most important measures which could be invoked would involve the directing or restricting of acts within the member states, such as embargoes on their exports and imports, the shutting off of rail, air, radio and other communications, and other economic sanctions. The acts of sending and receiving, thus affected, would almost inevitably constitute "matters essentially within" our domestic jurisdiction, and would also involve "rights of citizens" within the United States.

Thus we would be prevented from making any agreement of this sort to deal with aggression, and under the language of section 2 it would seem that such an agreement could not be saved even by a reservation of veto power. If that is so, section 2 would have prevented us from ratifying the United Nations Charter. Further, if the section should be interpreted as applying to existing agreements, we could no longer adhere to some of its most important provisions, viz, the enforcement measures against acts of aggression. (The domestic jurisdiction exception of the Charter, art. 2, subsec. 7, does not apply to such measures, presumably because it was recognized that the imposition by the United Nations of economic sanctions against an aggressor would necessarily effect some intervention in the domestic affairs of the member states which carried out the sanctions.)

The question is not whether economic sanctions are always wise, or always effective. The question is whether we want to incapacitate ourselves from agreeing to authorize their imposition by an international body, in consideration of like agreements from other nations. And the decision of this question by section 2 would incapacitate us for all time, subject to no relief except what could be obtained from a further constitutional amendment. Considering the obvious moral and political advantages which might in many cases accrue from having sanctions imposed by an international body rather than by an interested nation and its allies, it seems clear to us that it would be imprudent for the United States to throw away, now, all opportunity for future participation in such a method of curbing aggression.

In peacetime also, we have seen fit to authorize international organizations to have some measure of supervision over matters which can be classified as essentially domestic.

1 Under section 2, we could not give a foreign power the rights which have been given us to supervise and control military cemeteries in Belgium, France, and Italy under our rules, free from local burial regulations.

Under section 2, the United States could not take part in the international monetary fund agreement. Provisions such as the article barring a change in the par values of the respective currencies of fund members except under specified circumstances, submit domestic matters to international control. The President was explicitly authorized by the Congress to accept these articles of agreement on behalf of the United States. By joining the fund, the United States thus agreed not to exercise one of its powers without the concurrence, under certain circumstances, of an international organization. While the Congress retains its constitutional power "to coin money, (and to) regulate the value thereof," the good faith of the United States is pledged internationally to a measure of forbearance in the exercise of this power. Thus we, as the trading nation with the most at stake, sought to mitigate the effect on ourselves and others of erratic currency fluctuations throughout the world.

In the field of conservation, the United States and Canada have set up an international commission with power to prescribe closed seasons to protect the salmon in west coast rivers and coastal waters of the two countries. Without

such control, this natural resource shared in common could not be adequately and efficiently protected. But section 2 would interdict this protection because some Canadians sit with some Americans on a board supervising fishing seasons for salmon, a matter essentially within the domestic jurisdiction of each country but of concern to both.

The International Telecommunications Union has been given power to allocate radio frequencies and make regulations. The World Health Organization has power to adopt quarantine requirements to prevent the international spread of disease, to be binding on member nations unless rejected within a specified time. Such provisions could fall under the domestic jurisdiction ban of section 2, although radio waves and bacteria do not recognize international borders. Prohibition of adjudication by a foreign power or international organization

Lawyers welcomed the International Court of Justice, which has a broad jurisdiction to determine disputes between states when member states so declare. Though our adherence to the court's compulsory jurisdiction contains an excep tion for matters of essentially domestic jurisdiction, that is no reason for writing a similar limitation on treaties into our fundamental law."

Regardless of the terms of our adherence, the court can have jurisdiction of cases which we and another nation party to the dispute refer to it. For the protection of our own nationals, we should retain the power to espouse their causes before the International Court against another state. In view of the doctrine of sovereign immunity otherwise applicable, this may be the only protection for an American citizen having a claim against a foreign nation. There is no reason why our country should be constitutionally prohibited from such action just because the claim relates to a property right of a United States citizen within the United States or is otherwise a domestic matter. Foreign countries have within the United States sold bonds to our citizens thus giving rise to such rights. Under international precedent, our country could espouse these claims in the International Court of Justice, provided of course the defendant state had accepted its jurisdiction. In the ECA agreements, pursuant to congressional mandate, we required each recipient nation to submit to the International Court claims thus espoused by us. But section 2 would have prohibited the United States from suing in the International Court on behalf of its own citizens, to enforce and adjudicate their rights within the sphere covered by that section.

3

In the case of certain specific treaties, we have also given to the International Court of Justice jurisdiction over disputes concerning their performance. Our recent treaty with Japan does so, and also contains clauses validating prewar debts of Japanese nationals or Japan. The treaty thus provides for adjudication in that court of disputes between Japan and the United States as to whether Japan's conduct as a state has violated the treaty, and whether payment should

2 The scope of the phrase "domestic Jurisdiction" is difficult of definition. (See John Foster Dulles, speaking of the similar exception in the United Nations Charter. 6 U. N. Conference on International Organization, 507, 508 (1945), Doc. 1019 (English), January 1, 1942. June 16, 1945.)

The Permanent Court of International Justice assumed jurisdiction over the claims of France, advanced in behalf of French nationals, against Serbia and Brazil to compel payment of bonds issued by those two countries in the manner specified therein, i. e.. gold francs or their equivalent. Case concerning the payment of various Serbian loans issued in France. judgment 14, publication of the Permanent Court of International Justice, series A, No. 20 (1929); case concerning the payment in gold of Brazilian federal loans contracted in France, judgment 15, series A, No. 21 (1929).

be made to American bondholders having rights under American contracts. Yet under section 2 this sensible method of settling arguments in this field would be prohibited.

The Convention on International Civil Aviation of 1944 provides rules operative in the United States affecting matters of domestic jurisdiction. Each nation agrees not to allow a foreign airline to fly over its territory if the airline does not meet minimum standards of the International Council. In addition, the Council is empowered to provide and administer airports and navigation facilities in any nation (on the nation's request) required for operation of foreign air services and specify reasonable charges therefor. The Council may conduct investigations and determine disputes, subject to appeal to arbitration or the Permanent Court of International Justice. Under section 2, provisions such as these would have been impossible for us to agree to, and air traffic would have had to go free of any international supervision.

The proposed constitutional restriction would also prevent ad hoc reference (by treaty or international agreement) to any international tribunal, arbitration panel, or claims commission of disputes relating to the specified enumerated rights or certain domestic matters. Thus after World War I the owners of the Black Tom Plant were only too glad to be able to place their damage claims before a commission composed of two commissioners, one appointed by the United States and one by Germany, and an umpire appointed by the two countries. Under a proper construction of section 2, such a commission would have been prohibited and the American claimants would have been left without remedy.

As lawyers, we deplore the prohibition which section 2 would impose on the use of the judicial process in the international field.

Through the long reaches of time, mankind has had just one ultimate arbiter of disputes between nations-the gruesome test of war. But as civilization has advanced, men have set themselves the task of finding a better way to avoid and settle disputes while at the same time perfecting the science of atomic fission which turns warfare into a contest of annihilation. It is intolerable that our cities, and other cities throughout the world, should be subject to obliteration at an enemy's command. Truly the search for international law and international order has turned into a race between progress and destruction. The very survival of the city in which we are working may depend on the skill of our national leaders and the maximum use of our sovereign powers to meet emergencies.

But against this background of necessity, Senator Bricker's proposal would cut athwart the only alternatives to nihilistic war existing today—a readiness to submit disputes to legal processes and a willingness to follow the ways of peace through a joint effort to provide armed protection and controlled disarmament.

Should the people be asked to write out of the Constitution any power in anyone to make any treaty or other international agreement in the prescribed category, no matter how advantageous it may be? We believe not. The Constitution already gives us protection by checks and balances. If a bad treaty is proposed to us, the President can refuse to sign. If he does sign, its ratification can be killed by the votes of one-third of the Senators present plus one. Or if a treaty is considered desirable in certain respects but not in others, it can be ratified by the Senate with safeguarding reservations. The Senate has shown no diffidence in rejecting treaties or in adopting them with reservations-to such an extent that it has on occasion been accused of being the graveyard of treaties. In conclusion, as to the proposed section 2: It would have prevented our making various treaties and international arrangemnts which in the past we have considered it advantageous to make. It would in the future in many cases prevent our using international courts for the settlement of disputes by peaceful methods, and our granting power to international or allied commands for the most effective conduct of wars. The existing constitutional machinery provides adequate restraints against the making of improvident treaties. The prohibitions which section 2 would impose--both as to their form and their substanceare dangerously restrictive and against the best interests of all of us.

NON-SELF-EXECUTING TREATIES

Under section 3, it would be provided that:

"A treaty shall become effective as internal law in the United States only through the enactment of appropriate legislation by the Congress."

Thus to have internal force, a treaty would need approval by (1) the President, (2) a two-thirds vote of the Senate, (3) a majority vote of the House, and (4) a majority vote of the Senate.

Section 3 is similar to a proposal which was made in the Constitutional Convention and defeated by a vote of 8 to 1. That proposal was that the Constitution provide that "no treaty shall be binding on the United States which is not ratified by law." The history of the intervening 166 years suggests nothing which would justify adding this requirement now.

In a Federal system of government such as ours, it is essential not only that the control of foreign affairs be lodged in the Central Government but that there be provided means of enforcing such control. The chaotic situation which existed under the Articles of Confederation is a sufficient example of the result of failing to provide the Central Government with a means of giving internal effect to its treatymaking power.

Section 3 ostensibly recognizes the need for Federal supremacy in foreign affairs and does not in terms purport to abolish it. (Thus Senate Joint Resolution 1 does not alter Missouri v. Holland, above.) However, the requirement of a congressional enabling act in every case in order to make a treaty effective as internal law would have a crippling impact upon the treatymaking power.

The contention that the change would place the United States on a parity with other nations in the treatymaking process, does not withstand analysis. The situation in the United States is in no way comparable to that existing in countries like Great Britain, France, Holland, or Belgium, for example, where the executive is chosen by the majority of the Parliament or legislative body. In those countries, the government in power controlling both the executive and legislative branch must necessarily be in a position to implement any treaty negotiated by it with a legislative act-otherwise the government which negotiated the treaty would itself fall.

For parallelism in the United States, it would be necessary to depart from the division of powers which is basic to our Constitution. Certainly requiring action by an extraordinary majority of the Senate as well as action by an ordinary majority of Senate and House is not parallel to any foreign practice. Many treaties affect internal law and must do so in order to achieve their legitimate ends. Examples are the conventional treaties of friendship and commerce providing for nondiscriminatory treatment of our citizens while abroad and of aliens while here (Asakura v. City of Seattle, 265 U. S. 332 (1924)).

There is much to be said for the proposition that the two bodies which enact our laws by majority vote might well also be entrusted with the task of consenting to treaties by majority vote. But there is no logic in the proposal that the United States, having validly ratified a treaty by two-thirds vote of the Senate, must become a treaty breaker because the House or Senate later refuse to concur in making the treaty effective as internal law. Even when such a majority of the two Houses can be obtained, the treaty would remain ineffective as internal law during the process attendant upon the enactment of a congressional enabling act. During that period any State could disregard the treaty insofar as it conflicted with State law and indeed could enact conflicting State laws.

In any event, it would be unwise to incorporate into the Constitution a provision which would prevent any treaty from becoming self-executing, as some treaties would lose their effectiveness if their operation were suspended even temporarily.

The terms of any treaty can provide that it is not to be self-executing or the Senate by reservation can assure such result. No constitutional amendment is needed to sanction a provision to that effect.'

4 For example, the treaty under consideration in Missouri v. Holland (252 U. S. 416 (1920)), was non-self-executing. The California Supreme Court has held that the United Nations Charter pledge to promote human rights without distinction as to race is nonself-executing under the United States Constitution. Fujii v. State of California (38 Cal. 2d 718, 242 Pac. 2d 617 (1952)). The California Supreme Court rejected the lower court's contrary view on this point.

It would be possible for the Senate's concurrence to a treaty to be conditioned upon its being inoperative to change domestic law without further legislation-memorandum of Parliamentarian of Senate. 98 Congressional Record 2602 (March 20, 1952). In the case of a treaty originally intended to be self-executing, this would amount to a counter offer. There has never been any doubt cast in the decisions of either municipal or international courts as to the efficiency of reservations made in the ratification of a treaty. The advisory opinion of the International Court of Justice of May 28, 1951, reservations to the Convention of Genocide (I. C. J. reports, 1951, p. 15; 45 Am. J. of Int. Law 579 (1951)) does not suggest that ratification may bind a nation to an obligation excepted from ratification by reservation. The sole concern of the case is whether a nation which ratifies with reservations may be considered by other parties to a treaty as though it had not ratified at all.

Today, therefore, it is within the discretion of the treatymaking authorities (the President or Senate) whether a treaty shall be self-executing or require further legislation. Thus the result sought by section 3 is attainable under the Constitution as it stands, and section 3, in addition to being undesirable, is unnecessary.

EXECUTIVE AGREEMENTS

Section 4 of the proposed Senate Joint Resolution 1 provides:

"All executive or other agreements between the President and any international organization, foreign power, or official thereof shall be made only in the manner and to the extent to be prescribed by law. Such agreements shall be subject to the limitations imposed on treaties, or the making of treaties, by this article."

This double-barreled proposal would impose on executive and other agreements made with a foreign country or officer thereof both the limitations on treaties specified in the preceding sections, and a prohibition against making any agreement except as previously prescribed by Congress. The effect is to reach all agreements however unimportant because of the reference to "executive or other agreements."

Executive agreements have played a long and important role in the history of our Nation. In contrast to treaties which, by the very solemnity of their adoption, are necessarily few in number, executive and other agreements are a frequent result of relations with other nations. They cover extraordinarily varied subjects which almost defy classification. Certain types of international agreements have been traditionally (but not always) negotiated by executive agreements; e. g., the inspection of vessels, navigation dues, the admission of civil aircraft, customs matters, and commercial relations generally, international claims, postal matters, the registration of trade-marks and copyrights, et cetera (5 Hackworth, Digest of International Law 397).

The Constitution gives to Congress the power to declare war but not the perhaps more difficult task of conducting the war or its aftermath other than formal establishment of peace under the treatymaking power. The Japanese surrender and the creation of the Far Eastern Commission, which were legal bases for our occupation of Japan, both took the form of executive agreements. The German surrender was also an executive agreement, as were the several agreements with the United Kingdom and France for occupation of Western Germany. All of these agreements were part of a continuous process requiring also congressional legislation and appropriations for implementation. At the lower end of the scale are the innumerable agreements made by officials of various ranks for the redress of grievances of Americans in other countries or of foreigners here. Taken literally, the present section would apply to agreements respecting protocol, or for visits of state, as well as the myriad agreements involved in joint occupation of a conquered foe. Thus, the President, without congressional sanction, could not make the simplest of preliminary arrangements, such as an agreement to meet and discuss the terms of a treaty, an armistice or a draft convention. This would indeed reverse the decision in the Constitutional Convention to have a single Executive, and would substitute 96 Executives in the Senate and 435 Executives in the House.

Agreements other than treaties with foreign nations are recognized by the Constitution, and have been upheld by the Supreme Court. They are made by the President either under the executive power of the Nation, which is vested in him by the Constitution, or under his power as Commander in Chief, or under

The destroyers-for-bases deal was an example of an executive agreement providing fast action in an emergency when Hitler had overrun France and threatened to conquer England. The ships helped in stopping his conquest, and the bases were and are essential to our protection. Congress has repeatedly joined in the transaction by providing for the maintenance of the bases. Wendell Willkie, Republican candidate for President at the time. supported the agreement when announced.

U. S. Constitution, art. I, sec. 10: art. II, secs. 1, 2, 3. Through the years, the executive agreement has been remarkably free from litigation. The only direct adjudications in the United States Supreme Court deal with the so-called Litvinov assignment, accompanying the formal recognition of the Russian Government, under which American assets of nationalized Russian companies were transferred to the United States for the benefit of American claimants against the Russian Government. In United States v. Belmont (301 U. S. 324 (1939)), and United States v. Pink (315 U. S. 203 (1942)), it was held that the resulting "international compact" was effective to override the holding of the New York courts that the State policy was against recognition of confiscation decrees. No claims of United States creditors of these corporations were involved.