were mandatory and self-executing as your organization urged as late as January 5, 1948? Mr. EICHELBERGER. Frankly I do not remember, and I would have to see my testimony to see if I did. If you have it, read it. Mr. SMITHEY. I do not care to incorporate the whole of your testimony, sir. I would be glad to submit to you a volume which would indicate that you did appear. Mr. EICHELBERGER. I guess you do not have the time for me to read this over. Mr. SMITHEY. No. I simply furnish it to you in order that you may refresh your recollection in order to better inform the committee. I take it that you have no recollection whether you informed the Foreign Relations Committee at that time that it was the thought of either yourself or your organization that the human rights provisions, articles 55 and 56 of the charter, would automatically supersede all inconsistent State and Federal legislation. In other words, that it was self-executing. Do you recall that? Mr. EICHELBERGER. No, I do not recall, sir. It is quite possible that I was of that frame of mind at the time because I certainly did not object to the filing of the amicus curiae brief. I can only say at the present time in the light of discussion of some 5 years, I certainly would not argue that the charter is self-executing. I think the Supreme Court of California quite properly argued the matter and disposed of it. Mr. SMITHEY. Or that human rights were converted from essentially a domestic matter to a matter of international concern? Mr. EICHELBERGER. I would not go back on that, no. I think if you have a violation of human rights throughout the world, they are more than a matter of domestic concern. I think that the pattern of genocide that Russia is now developing in anti-Semitism and her violations of human rights goes far beyond domestic concern. It is a threat to the peace of the world. I was of the opinion and am of the opinion that at any time a nation's human rights are such as to threaten the peace of the world, it is no longer a matter of domestic concern. Senator KEFAUVER. If anyone wants to read your testimony; let us refer to the page of the hearing. We will not copy it into this record. Will you identify it, Mr. Smithey? Mr. SMITHEY. Volume 1, Senate Committee Hearings, 1945, volume 767, obtained from the Senate Library. Senator KEFAUVER. At the time the matter of the adoption of the U. N. Charter was before the Senate? Mr. SMITHEY. That is correct. The testimony of Mr. Eichelberger appears beginning at page 510 of that volume. I have one more question, Senator. I think in all fairness to Mr. Eichelberger, I ought to ask him this question, because it has been much discussed. Mr. Eichelberger, I have before me a copy of the hearings before a subcommittee of the Committee on Foreign Relations of the United States Senate, 81st Congress, 2d session, on the revision of the United Nations Charter. That shows that you testified before that committee, and that your testimony is there listed at page 350. Do you recall that? 30572-53--49 Mr. EICHELBERGER. Yes. Mr. SMITHEY. You made a statement at that time and I would like to ask you about that statement in view of your earlier discussion of the U. N. as a supergovernment or world state. You said there at page 352: The fact that we are opposed to an effort to change the charter of the U. N. at this time does not mean that we are defenders of the status quo. We are anxious that the United Nations evolve as rapidly as possible into that degree of world government necessary to achieve political security, economic advancement, and greater enjoyment of human rights. Sir, what do you mean by having the U. N. evolve into "that degree of world government"? Mr. EICHELBERGER. I think you will have to give a little bit of background of these hearings to get the proper setting. A number of resolutions had been introduced in Congress looking to the establishment of a world federation or Atlantic community. Quite a number of distinguished Senators signed a resolution for an Atlantic community, and some for the change of the charter into a world federal constitution, and I appeared, I am afraid, in the eyes of some of my friends in the federalist and Atlantic movement as a reactionary, because I was pleading against an effort to revise the charter at that time. I took the position then, and I do not retreat at all from the position that the United Nations without a change in charter can evolve by a voluntary pooling of sovereignty on the part of its members to such elements of world government as they need to save our lives. Mr. SMITHEY. Would you not be arguing, sir, that it could be done by interpretation? Mr. EICHELBERGER. Yes; it could be done by interpretation. An interpretation cannot be forced upon us. Mr. SMITHEY. The point I am making is that it would not be necessary for it to come back to the Senate of the United States by ratification if it were to be done by interpretation. Mr. EICHELBERGER. If the United States were to do as fundamental a thing as to change the charter into an instrument of world federation, I do not know whether that would take an amendment to the Constitution or not. It probably would. I am not talking about a drastic thing like that at all. The U. N. has evolved very considerably. For instance, the center of gravity is the uniting of the peace resolution that our Government submitted that was shifted from the Security Council to the General Assembly. At San Francisco one of the members said to me in the closing days of the conference, he said, "You lose. You have been advocating an international police force. There is nothing in the charter about an international army and there never will be one." I said when the time comes they need an international army they will find one. Our own Government has suggested to the U. N. that it have a United Nations legion. It takes no change in the charter for the U. N. to have whatever forces it needs to supplement or act in advance of the contingents that the member states would contribute. So I would say that there are many ways in which the U. N. Charter can evolve. There was a very important decision or, advisedly, opinion of the World Court recently, which takes the position that the U. N. can do whatever is necessary to preserve the peace of the world, provided it is not prohibited in the charter, and the members agree. Remember, all the decisions of the charter take two-thirds vote of the General Assembly, where we have some influence or the vote of the Security Council where the affirmative vote of the United States must be counted. So you have a high degree of evolution and you have control of atomic energy, which would give us a world government on one department which I think is necessary if we are not to be destroyed. But none of that can happen without our constitutional authority, either the President or the Senate, depending how it is handled. Mr. SMITHEY. I am interested at this time in finding out how far you think the U. N. can go or the United States in the U. N. can go either by interpretation or by treaty without a constitutional amendment, toward world government. That is why I asked you the question originally. Mr. EICHELBERGER. If the United States was to become part of a world federal government with 20 or 60 nations, I presume it would take a constitutional amendment. Apparently some of the federalists feel that way about it, so they have been urging a constitutional amendment. I am not advocating a world federation. I am saying what we mean is a pooling of sovereignty, and I presume that means government, because it means authority, the creation of an authority in whatever department of international affairs is necessary to save us, which I think is necessary now with atomic energy weapons and arms. The United Nations cannot force a Baruch plan on us, or a program of inspection and control unless we vote for it. Therefore, there is no outside authority in the U. N. that can coerce us into doing anything without our consent. Mr. SMITHEY. May we digress for a moment while I ask you one question. I thought in your presentation you argued that atomic energy was a matter within the domestic jurisdiction and would therefore not be permitted if the Bricker resolution were to be adopted. Are you arguing that atomic energy is a matter of international concern? Because the same limitation that appears in the Bricker resolution likewise appears in the U. N. Charter; does it not? Mr. EICHELBERGER. Yes. But my point is that this point 2 of the Bricker resolution is so worded that it could very well be interpreted as to prevent an international agreement for inspection and control of atomic energy. If, as Senator Bricker said in an address I read in the Record the other day that all these matters are matters of international concern, I think he has given away his case. Mr. SMITHEY. I think that concludes the questions I have. Mr. EICHELBERGER. Simply in conclusion I want to repeat what I said in the beginning, Senator, that I think we must have faith in the President and the Senate to protect American interests in a highly complex world without crippling or hobbling amendments; that we must not serve on ourselves, and the world, that we will go no further in the development of a world community because we have made it constitutionally impossible. That as a great power we must take the lead in the development of the United Nations, the strongest possible U. N. to preserve the peace of the world. That that can be done without any coercion but at the same time it is a matter in which we must give leadership. I am not at all scared of the world sovereignty because whatever pooling of sovereignty we find necessary with other nations for the peace of the world through the U. N., I think the American people will accept. But I would like to have us feel that we are beginning a great experiment in the building of a community of nations, and if it fails, it is disaster for all of us. If it succeeds, it is salvation for us. I would hope that the Senate, after having confidence in itself for 164 years, would not now try to curb some future Congress or curb the President and make it impossible to protect the interests of the country or to further advance the U. N. Senator KEFAUVER. Thank you very much, Mr. Eichelberger, for your testimony, for your coming here, and for the views that you have expressed. May I ask you to look over this Peoples Section and unless there is any particular reason why all the bulletin should be included, I think the paragraph "Why a Covenant" is all that is necessary to be included. The next hearing is scheduled for March 31, which is next Tuesday, at 10 a. m., at which time Mr. Faupl and Mr. Williams are listed as witnesses. Until that time the committee will stand in recess. (Thereupon at 3: 45 p. m., a recess was taken until Tuesday, March 31, 1953, at 10 a. m.) TREATIES AND EXECUTIVE AGREEMENTS TUESDAY, MARCH 31, 1953 UNITED STATES SENATE, SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY, Washington, D. C. Also present: Wayne H. Smithey, subcommittee counsel. You may proceed, Mr. Faupl. Mr. SMITHEY. Before we proceed with the testimony of the first witness this morning, Senator Kennedy has written requesting that the article by Mr. Bernard Fensterwald, Jr., which appears in the December 1952 issue of the Federal Bar Journal, be inserted in the record. I would like to ask, sir, that not only that article be inserted in the record but the article which precedes it by Senator John Bricker on the same subject. The CHAIRMAN. They will be inserted. (The documents referred to follow :) SAFEGUARDING THE TREATY POWER By Senator John W. Bricker, for the Federal Bar Journal Sixty-two other Senators joined with me in introducing Senate Joint Resolution 1.' This proposed constitutional amendment is designed to prevent any treaty or executive agreement from undermining the sovereignty of the United States or the fundamental rights of its citizens. The four substantive sections of Senate Joint Resolution 1 read as follows: "SECTION 1. A provision of a treaty which denies or abridges any right enumerated in this Constitution shall not be of any force or effect. "SEC. 2. No treaty shall authorize or permit any foreign power or any international organization to supervise, control, or adjudicate rights of citizens of the United States within the United States enumerated in this Constitution or any other matter essentially within the domestic jurisdiction of the United States. "SEC. 3. A treaty shall become effective as internal law in the United States only through the enactment of appropriate legislation by the Congress. "SEC. 4. 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." The scope of the treaty-making power has been hotly debated ever since the founding of the Republic. At first, the debate centered on the use of the treaty 199 Congressional Record 160, 161, January 7, 1953. 2 A similar resolution, S. J. Res. 130, was introduced by me and cosponsored by 58 other Senators in the 82d Cong. (98 Congressional Record 921, February 7, 1952). Hearings on S. J. Res. 130 were held before a subcommittee of the Senate Judiciary Committee, but the resolution was not reported out of committee. |