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by the provision in section 2 of the resolution, which bars treaties which authorize or permit "any foreign power *** to supervise, control, or adjudicate rights of citizens in the United States."

Another international air transport problem on which international agreement has been sought is the liability of aircraft of one country for damage on the surface in another. Some airline operators fear that the crash of an aircraft into an area of inflammable, crowded dwellings could result in liabilities of so many millions of dollars as to bankrupt a carrier. On the other hand, the persons on the ground are concerned that aircraft of foreign countries could do such damage and the operators have no assets to reimburse the losses. To protect both of these interests, the ICAO legal committee prepared the Rome Convention which, on the one hand, regulates insurance requirements to provide protection for the persons on the ground, and on the other, sets a maximum liability to protect the operator. To make these provisions effective, the convention provides that lawsuits may be brought only in the courts of the country where the accident occurred. Thus, if an American-flag aircraft destroyed American property in Paris, the American claimant could sue only in France, and subjects his rights to the adjudication of a foreign power in forbidden conflict with section 2 of Senate Joint Resolution 1.

We do not here assert that this treaty is a desirable one in all its aspects, or that the United States should become a party. In fact, the United States has not signed it, and we have not decided whether to urge adherence. Our point is, however, that in order to draft a treaty which will deal with the international problems this country faces, it is often necessary to deal with rights which now, for the first time, have international significance. Our ability to deal with them in treaties should not be hamstrung at the threshold of negotiations by the blanket prohibitions included in Senate Joint Resolution 1.

Another type of agreement vital to international air commerce is the bilateral agreement between states which prescribes the rights to carry international air traffic. These agreements exchange operating rights, designate cities which may be served, contain provisions prescribing standards for determining whether service is excessive, and prescribe procedures for settling rate or other disputes. These agreements represent the keenest international commercial bargaining; access to the lucrative United States travel market is exchanged for access to foreign points. The United States has made more than 45 such bilateral agreements, and on these rest our commercial operations in the airlanes of the world. These commercial operating arrangements are executive agreements which would receive, we believe, several mortal blows from this proposed legislation. First, the resolution, by prohibiting agreements relating to arbitration of disputes, removes an important bargaining token otherwise available to help reach agreement. Almost all of the bilaterals now in effect authorize reference of disputes to international bodies for settlement, which is directly contrary to the prohibition in section 2 of the contemplated legislation. Already the executive branch is hampered in these negotiations by its hesitancy to agree to enforce such arbitral decisions, but this blanket prohibition puts our negotiators in the unten. able position of saying that under no circumstances can disputes be referred to an international body for arbitration. An attitude of conciliation and fairmindedness, essential to friendly negotiations, is precluded from the beginning. Second, the new procedure provided in the resolution. would make it extremely difficult, if not impossible, to negotiate executive agreements. Such agreements could, under section 4 of the resolution, "be made only in the manner and to the extent to be prescribed by law." This presumably would require advance legislation as to the routes which could be exchanged and the conditions to be attached. At present, these views are formulated by our Government in strictest secrecy to reveal no information which would be of aid to the foreign negotiators. But under this new law, in order to secure the blueprint legislation for the negotiations, all these matters would have to be laid before Congress-and the competing negotiators.

If the authorizing legislation failed to cover a detail which might arise during the negotiations, the foreign state could question the authority of the executive branch to bind our Government. Such obstacles are advantages to be used by the hands of foreign states to cause delay. Delays abound in these discussions; more should not be added.

Would this section bar an agreement to consult on short notice? Since most of the bilaterals permit one party to call for consultation on 60 days' notice, presumably new legislation would be necessary during the 60-day period authorizing further negotiations involving amendments to the agreement. If that

is what is meant by section 4 of the resolution, such consultation provisions would be impractical, and the provisions of existing agreements opened to question.

Another procedural restriction the Senate Joint Resolution 1 would impose is the requirement that these agreements be subject "to the limitations imposed on treaties or the making of treaties." Presumably they must be enacted by Congress before becoming effective as internal law. If this were the case our Government could not make a firm agreement without substantial delay, since the agreement would have to take its place on an already crowded legislative calendar.

Another type of agreement, also of far-reaching importance to air navigation, would presumably come within the scope of the resolution by virtue of the language in section 4, which includes "executive and other agreements." These agreements are technical agreements made on short notice for the loan of aeronautical equipment. These arise out of the current competition between the United States and foreign states to secure the widest use by foreign countries of their equipment for air navigation. The United States favors the use of the common system, which calls for specified radio transmission and receiving equipment on the ground and in aircraft. If the American system is adopted, it will permit the American-flag airlines to equip themselves with one system to be used around the world. If a foreign system is adopted, American airlines will find it necessary to duplicate and maintain equipment in their aircraft for both systems, at enormous expense of purchase, maintenance, and training. Our border airports would have to acquire duplicate equipment of the competing system to serve foreign aircraft operating to the United States. To foster the adoption of the American system, our Government offers to lend the equipment for immediate use to permit training and familiarization pending ultimate purchase. Such loans require agreements covering details, such as the responsibility of the respective Governments for the technicians' pay, transportation, office equipment, clerical assistance, civil liability for damages resulting from the activities of the mission, issuance of identification credentials, security measures, tax and customs duties, etc. The requirement that Congress authorize these in detail prior to their negotiation and approve them before they are effective would impose on Congress myriad details, and could inject sufficient delay in a competitive race to prevent the United States from securing the adoption of a system essential for economic international air operations.

This resolution, by restricting the matters which may be agreed to and by elaborating the procedures for reaching agreements, would harmfully restrain the powers needed by our Government to make aviation agreements without adding to the existing power of Congress to control them. Objectionable provisions in treaties can be reviewed by the Senate in the process of ratification. If the objections outweigh the advantages, the treaty can be rejected or crippled through reservation or through subsequent legislation. Since almost all executive agreements are now negotiated on the basis of legislation, these can be controlled either by the authorizing legislation or by further legislation. These matters are further controlled by the sustaining or terminating power of appropriation. The proposed Joint Resolution 1 is unnecessary. But in recasting the existing power with blanket prohibitions and cumbersome procedures, the Congress would cripple the ability of our Government to come to terms with the world we live-and fly-in today.

The previous comments relate to Senate Joint Resolution 1. We now have Senate Joint Resolution 43 under examination. At the present time it appears that many of the problems that we raised would be met by the adoption of Senate Joint Resolution 43 rather than Senate Joint Resolution 1. However, we will delay our final comments on the latter resolution for a few days, pending further study. Very truly yours,

S. G. TIPTON, General Counsel.

Mr. SMITHEY. The statement of the Steuben Society of America, National Council.

Senator KEFAUVER. It will be received and made a part of the record.

(The statement is as follows:)

STEUBEN SOCIETY OF AMERICA,
NATIONAL COUNCIL,
New York 17, N. Y., March 17, 1953.

STATEMENT OF THE STEUBEN SOCIETY OF AMERICA IN SUPPORT OF SENATE Joint RESOLUTION 1, 83D CONGRESS, 1ST SESSION

POINT I

The Steuben Society of America, after due consideration at a meeting of its National Public Affairs Committee, resolved to support the efforts being made to amend the Constitution of the United States relative to the making of treaties and executive agreements.

POINT II

The position of the society enunciated in point I is based upon the knowledge that there are before the United Nations for consideration certain proposed international covenants some of which might have the effect of internally legislating with respect to the rights of American citizens, should they be ratified under the present treaty-making power of the Constitution or under the executive power to enter into executive agreements. It is the understanding of this society that the Supreme Court of the United States has interpreted the Constitution to mean that the ratification of a treaty in accordance with the provisions of our Constitution as presently existing, makes such treaty part of the supreme law of the land; so that while our Constitution provides a definite method of amending it, which method takes into account the voice of the population at large instead of merely its legislative representatives, the ratification of a treaty is in effect a circumvention of that plan making it possible to legislate internal affairs and restrict established rights by a method simpler than that involved in the process of amending the Constitution by vote of the people.

One can readily see that with the greater collaboration between nations, opportunity, whether intentional or not, is afforded to wipe out and supersede State and Federal law, statutory and otherwise with a possible detriment to those directly affected thereby, the people of the United States.

It is for the reason that this possibility exists, the Steuben Society of America takes the position that the Constitution of the United States should be clarified to eliminate any such happening.

POINT III

Our society supports the joint resolution as mentioned in point I for the reason that it appears to answer the problem involved briefly and directly in that it:

(a) provides that the provision of a treaty which denies or abridges any right enumerated in the Constitution of the United States shall be of no force or effect;

(b) bars internal legislation through agreements made with other countries; (c) limits the effectiveness of treaties by giving Congress the power to enact enabling legislation;

(d) limits the effectiveness of executive agreements, in the same manner as treaties are limited.

POINT IV

It is respectfully submitted that the said resolution is one proposed in the best interests of the United States of America as the same pertains to the internal affairs of the people of this Nation and makes more definite the nationwide understanding that only by vote of the people may the Constitution be amended. Respectfully submitted.

STEUBEN SOCIETY OF AMERICA,
ROBERT F. HOLOCH, National Chairman.

Mr. SMITHEY. The statement of Mr. Hugh Schwartzberg, National Chairman of the Collegiate Council for the United Nations. Senator KEFAUVER. It will be received and made a part of the record.

(The statement is as follows:)

STATEMENT IN OPPOSITION TO SENATE JOINT RESOLUTION 1, 83D CONGRESS, 1st SESSION BY HUGH SCHWARTZBERG, NATIONAL CHAIRMAN, OF THE COLLEGIATE COUNCIL FOR THE UNITED NATIONS

My name is Hugh J. Schwartzberg. I am a student at Harvard University. My home address is 6111 North Mozart Street, Chicago 45, Ill. I should like to present the following statement on behalf of the Board of Directors of the Collegiate Council for the United Nations, of which I am National Chairman. The Collegiate Council for the United Nations is a national student organization with member groups and affiliated organizations on 245 college and university campuses across the United States.

The proposed constitutional amendment under consideration appears to imply certain fears as to the capabilities of elected representatives of the American people. As young citizens and voters we are particularly concerned with the long-range effects of actions by this Congress designed to limit the actions of future Congresses and future Presidents.

The Collegiate Council for the United Nations wishes to express its opposition to Senate Joint Resolution 1.

At the CCUN's Seventh Annual Institute on the United Nations, held in New York City, June 15-21, 1952, delegates from colleges and universities throughout the United States gave careful consideration to the use of constitutional amendments to effect changes in the treaty making process, and to the role of the executive agreement. At that time the institute stated in a unanimous resolution that CCUN: "rejects unequivocably efforts as embodied in Senate Joint Resolution 130 to restrict United States participation in international endeavors by constitutional amendment and to limit the executive authority required for effective execution of foreign policy. * * *"

The CCUN board of directors meeting in Washington, D. C., February 27 to March 3, 1953, reconsidered the problem in light of Senate Joint Resolution 1 and other current proposals. At that time this statement was drawn up and approved by that body.

We wish to associate ourselves with the statement presented by Messrs. Pearson and Backus on behalf of the committees on Federal legislation and international law of the Association of the Bar of the city of New York.

We do not believe that the present Senate has shown an undue lack of caution in regard to treaties. On the contrary, our organization has been critical of the Senate's lack of affirmative action in regard to such items as the Genocide Convention. We are not fearful that a minority consisting of one Senator more than the one-third required will be unavailable to protect the rights set forth in our Constitution; we are, however, fearful that-as in the past-a similar minority may at times obstruct the formation of an effective foreign policy. We believe that this distinction is clear.

The treaty process has increasingly given way to the use of other forms of agreement in the field of American foreign policy. The executive agreement, along with such other items as the joint resolution, has assumed increasing importance. In part, this has been because of the cumbersome nature of the treatymaking process. It is evident that this amendment would place additional burdens on that process, from the standpoint of the executive branch of the Federal Government. Thus the tendency of the executive to bypass the treatymaking process would presumably be increased. We regard any resulting increase in friction between the executive and legislative branches in this field as in itself undesirable. In this context, the possible restrictions on the executive agreement contemplated by this amendment become of even greater significance.

The power of the Congress to repeal or limit unauthorized executive agreements has never to our knowledge been questioned. However, the advisability of prior general limitation of executive agreements as contemplated by this amendment is highly questionable. We believe that the present broad power of the Executive in the field of foreign affairs is necessary for the dynamic American foreign policy required by our age.

It has been suggested, though apparently not in these hearings, that this amendment would allow our Government to say one thing and do another—that practice has been impossible under our Constitution has been, we believe, a is, to ratify a treaty and then fail to implement it by legislation. That this healthy factor in American democracy. We do not believe that such a change is necessary or useful for the United States in our idealogical struggles abroad.

Those who have made such suggestions appear to be concerned with the proposed covenants of human rights. We do not believe that ratification of such covenant followed by failure to enact implementing legislation under the provisions of this proposed amendment would strengthen our position abroad. Nor do we believe that failure to ratify such a document on the basis of constitutional restrictions enacted at this time will be effective in our international struggle with the forces of totalitarian communism. At the same time it is important to realize that none of these problems are raised by the human rights covenants presently being drafted, in which non-self-executing clauses appear. It should also be borne in mind that such clauses can be negotiated under existing conditions for any other future covenants or treaties.

Should the members of this subcommittee share the fears expressed by some of those who have testified here that only a small number of Senators were on the floor of the Senate at certain critical votes, some change in the Senate's own rules of procedure may be desired. But this is not a matter for constitutional

concern.

It is our firm belief that future Congresses will be as concerned with the effectiveness of our Constitution as is the present one. It is our fear that the present Congress will reverse the current trend toward the development of a flexible structure for conduct of American foreign policy.

The transient microbe, as well as the migratory bird, presents problems that must be solved internationally. In such fields as the control of atomic energy a realistic basis for peace must involve the restriction of some of the rights of individual citizens in all countries. Attainment of such ends will require cooperation and mutual respect of all three branches of our Federal Government. We must place no hindrances on the effective conduct of American foreign policy. Considering Senate Joint Resolution 1 such a hindrance, the Collegiate Council for the United Nations hopes that it will be readily defeated.

Mr. SMITHEY. Statement of Prof. John P. Roche, on behalf of the Friends committee on national legislation.

Senator KEFAUVER. It will be received and made a part of the record.

(The statement follows:)

STATEMENT OF PROF. JOHN P. ROCHE, DEPARTMENT OF POLITICAL SCIENCE, HAVERFORD COLLEGE, HAVERFORD, PA., ON BEHALF OF THE FRIENDS COMMITTEE ON NATIONAL LEGISLATION ON SENATE JOINT RESOLUTION 1

It is my considered opinion, in the light of both my training in constitutional law and my convictions as a member of the Religious Society of Friends, that the Senate of the United States should reject Senate Joint Resolution 1. From the viewpoint of constitutional law, I submit that the proposed amendment to limit the scope of the treaty power is essentially predicated upon an archaic conception of sovereignty. As a Quaker with deep convictions about the necessity for stronger international organization, I oppose the philosophy implicit in the so-called Bricker amendment and consider it to be a psychological roadblock devised to discredit the United Nations and to influence American public opinion against further international commitments.

Constitutionally speaking, the Bricker amendment is predicated upon the assumption that American sovereignty may, through the operation of treaties or executive agreements, be transferred to some international body without congressional consent. To accept this view is to adopt the fallacy of misplaced concreteness. Sovereignty is not analagous to a certified check; it cannot simply be passed in negotiable form from one authority to another. In the same sense that a constitution ex proprio vigore does not create a state, no treaty could by itself transfer political power from the American Government to an international body. Without congressional support, any treaty or executive agreement which purported to yield sovereignty to an international organization would be merely an ineffectual piece of paper.

Furthermore, if American constitutional history teaches us anything, it is the impossibility of binding future generations to current convictions. Thus I would suggest that if an American President and a congressional majority were to agree to a substantial transfer of political power to an international body, no constitutional provision would suffice to block this action. The great virtue of our Constitution is its adaptability to new ways of thought, and in the event that the American people and their representatives decided upon a substantial transfer of political authority to an international organization, even the Bricker

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