Radiocommunications: Arrangements regarding the use of radio frequencies and facilities, coordination of broadcasting operations, licensing of operators, use of channels for civil aeronautical services, television channels along the Mexican border, exchange of international communications between amateur stations, inter-American cooperative measures, and related matters__. Arrangements made within the framework and authority of international telecommunication conventions (the latest: Atlantic City, 1947; TIAS 1901), separate arrangements for specific purposes being provided for and contemplated thereby. Also consistent with authority of Federal Communications Commission under existing law. Relief assistance: Agreements for prevention of suffering and to aid efforts toward recovery- 61 Stat. 125, 610; 62 Stat. 137, 150, 151. Shipping: Agreements regarding ship-measurement certificates, quarantine inspection of vessels on boundary waters, charges on pleasure yachts, recognition of certificates of passenger vessels, loadline certificates, jurisdiction over prizes, safety measures, and related matters___ Agreements made within the framework and authority of International Convention for the Safety of Life at Sea (50 Stat. 1121), and legislation dealing with subjects treated therein, e. g., 33 U. S. C. 142; 46 U. S. C. 170, 222, 223, 361, 362, 366, 367, 369, 391-416, 463a, 464, 472, 481, 728, 882; 47 U. S. C. 351-452. Strategic materials, acquisition and development: Programs for the acquisition, and facilitating the development, in foreign countries of strategic materials for stockpiling and other purposes; emergency purchases abroad; foreign food procurement and development---. Strategic War Materials Act; 50 U. S. C. 98–98h, and app. sec. 601 note. Taxation, double: Relief from double taxation on earnings from operation of ships and aircraft.. Secs. 212 (b) and 231 (d), Internal Revenue Code; 26 U. S. C. 212 (b), 231 (d). Trade, reciprocal: Reciprocal trade agreements, and modifications and extensions thereof, including agreements for extension of most-favorednation provisions to temporarily occupied areas__. Sec. 350 (a) of Tariff Act of 1930 as amended by act of June 12, 1934, as amended; U. S. C. 1351 (a), 1352 (c). Transfers of Naval vessels and equipment: Agreements regarding transfer of naval vessels and equipment_-. In re Greece and Turkey; 61 Stat. 103. In re China; 60 Stat. 539. Weather stations, meteorological research: Cooperative measures for establishing and operating wether stations and for conducting meteorological investigations‒‒‒‒‒ 15 U. S. C. 313a; 49 U. S. C. 603. Adding together the figures given above with respect to agreements in only 32 general classifications, it is found that the total is 1139. When it is recalled that the total of separate numbers in the EAS and TIAS for international agreements other than treaties is 1527, it should be readily perceivable that it is erroneous to use the term “executive agreements" as though it meant agreements which the Executive, solely on his own initiative and under claim of his own power, makes with other governments. The agreements of the types specified above are by no means all of the agree ments which have been made and are being made pursuant to legislative direction or authority or in accordance with existing laws and treaties. To mention only one other well-known type of administrative arrangement which has ample legislative basis, reference may be made to arrangements for reciprocal treatment of the personal goods of diplomatic and consular officers and their families with respect to exemption from customs and internal revenue charges on imported articles (see 26 U. S. C. 3802). (2) Agreements approved or implemented by legislation Among the agreements or understandings which have been entered into and, through legislative enactment, have been given effect are those involving membership by the United States in various international technical organizations. Some of the best-known examples of such agreements, and typical examples of a few other agreements, are indicated below. Membership in organizations: International Labor Organization (involving approval of Constitution, being pt. XIII of the Treaty of Versailles, 1919). Joint resolution of June 19, 1934; 48 Stat. 1182. Joint resolution of June 30, 1948; 62 Stat. 1151. United Nations Relief and Rehabilitation Administration (involving approval of agreement of Nov. 9, 1943). Joint Resolution of Mar. 28, 1944, as amended; 58 Stat. 122; 59 Stat. 612; 50 U. S. C. 1571-1578. Food and Agriculture Organization of the United Nations (involving approval of Constitution, opened for signature Oct. 16, 1945, having previously been formulated at an international conference). Joint Resolution of July 31, 1945: 59 S at. 529. Act approved Dec. 29, 1945; 59 Stat. 669. International Monetary Fund (involving approval of Articles of Agreement, Act approved July 31, 1945 (59 Stat. 512; 22 U. S. C. 286–286k), as International Bank for Reconstruction and Development (involving approval of Articles of Agreement, Dec. 27, 1945) Same statute citations as above for Monetary Fund. United Nations Educational, Scientific, and Cultural Organization (involving approval of Constitution, concluded at London Nov. 16, 1945, and signed for United States Sept. 30, 1946). Joint resolution of July 30, 1946; 60 Stat. 712. Act of Dec. 29, 1945; 59 Stat. 669. World Health Organization (involving approval of Constitution, dated July 22, 1946). Joint resolution of June 14, 1948; 62 Stat. 441. Act of Dec. 29, 1945; 59 Stat. 669. Caribbean Commission and its auxiliaries, the Caribbean Research Council Act of Dec. 29, 1945; 59 Stat. 669. International Refugee Organization (involving approval of Constitution, opened for signature Dec. 15, 1946). Joint resolution approved July 1, 1947; 61 Stat. 214. Act of Dec. 29, 1945; 59 Stat. 669. Examples of other agreements implemented: United Nations Headquarters Agreement (agreement to establish the seat of the United Nations in the city of New York and to regulate questions arising as a result thereof), signed June 26, 1947. Joint resolution approved Aug. 4, 1947; 61 Stat. 756. Act approved Dec. 29, 1946; 59 Stat. 669. Trusteeship, Pacific Islands (agreement approved by Security Council of Joint resolution approved July 18, 1947; 61 Stat. 397. Agreement with Canada, Dec. 8 and 19, 1942, for protection, preservation and utilization of the fur-seal herd of the Pribilof Islands (2 agreements on this subject). Act to give effect to the agreement, approved Feb. 26, 1944; 58 Stat. 100; 61 Stat. 450; 16 U. S. C. 631a-631r. Attention should be invited to the technical and administrative character of the matters covered by agreements in both of the categories above-mentioned. It is believed that there is no question as to the constitutional validity of such agreements or as to the authority of the President and of the Congress to join hands, as it were, in giving effect to such agreements. Any suggestion that such agreements have been made and are being made "in lieu of treaties" and to avoid or 30572-53--55 circumvent the constitutional treatymaking processes is not supported by the facts. (3) Agreements under executive powers Among the agreements, instruments, arrangements, or understandings which have been entered into and given effect through executive action without any apparent need for specific legislative authorization, approval, or implementation are the following: Armistice agreements (of which there are 5 in the Executive Agreement Series). Understandings reached with certain countries after the end of World War II hostilities to the effect that certain United States Armed Forces were present in territory of the other country by virtue of permission of such other country. Understandings with certain countries (e. g., Syria and Lebanon) regarding the maintenance of status of, or the according of most-favored-nation treatment to, American nationals in such countries. Arrangements regarding the treatment and aid to be given by certain countries to United States Armed Forces stationed in their territory. Arrangements recognizing the jurisdiction of the United States over criminal offenses by United States Armed Forces in foreign countries. Arrangements dealing with various phases of the movement and treatment of United States Armed Forces; e. g., permission for members of defense forces to visit in the other country in uniform, mutual transfer of armed service personnel, military and security measures, etc. Arrangements for use of Swedish Red Cross Field Hospital in Korea; arrangement for use of Norwegian mobile surgical hospital in Korean territory; arrangements recognizing the status of the forces of certain foreign countries (e. g., Netherlands and the Union of South Africa) participating in United Nations operations in Korea; etc. Arrangements regarding claims of various kinds, to carry out studies and, especially as applied to claims of Americans or the United States Government against foreign governments or their nationals, to lay down rules for settlement. Arrangement with former League of Nations whereby the United States would voluntarily register its international agreements. Provisional arrangements, in the nature of modi vivendi and as part of the negotiating processes, pending final action on basic instruments, for setting up preparatory or provisional committees to lay the groundwork for contemplated international organizations; e. g., the Preparatory Commission for the United Nations; Preparatory Commission for UNESCO; Preparatory Commission for the International Refugee Organization; Interim Commission for the World Health Organization. (Along the same line is the interim arrangement with the United Nations regarding establishment of the U. N. headquarters, pending final action to give effect to the basic Headquarters Agreement.) Arrangements with Panama and other countries regarding emergency use of highways therein by United States Armed Forces. Arrangements dealing with rules and procedures governing military occupation of territory, determining zones of occupation, control of industries and trade in occupied areas, etc. (The understanding with U. S. S. R. for terminating the Berlin blockade is series number 1915 in the TIAS.) A candid analysis of the situation in regard to the making of international agreements other than treaties can hardly fail to lead to the conclusion that they are an integral and essential part, even at times an imperative part, of the constitutional processes of conducting foreign relations. In the negotiation of such agreements, due regard is at all times given to the respective functions of the coordinate branches of the United States Government, and the necessity for reasonable diligence on the part of each in avoiding undue encroachment upon the powers of the others. It is hoped that the facts contained in this memorandum will result in a better understanding of the nature and function of international agreements. It has been stated hereinbefore that a comparison wou'd be made between the number of international agreements other than treaties and the number of treaties effected during the same period. Often comments have been heard or read to the effect that "executive agreements" have been and are being made in vast numbers and that relatively few treaties are being made. It has been pointed out herein that beginning with the Executive Agreement Series in 1928 and to the date of this memorandum, the numbers in that series and in the Treaties and Other International Acts Series represent some 1,527 international agreements other than treaties (including large numbers of mere extensions, modifications, supplements, etc.). The numbers in the Treaty Series and in the Treaties and Other International Acts Series representing treaties brought into force beginning with 1928 aggregate 299. At first glance there may appear to be a considerable disparity between those figures; 1,527 on the one hand and 299 on the other hand. There is no basis for comparison. By analogy, an attempt at comparison merely on the basis of total figures would be somewhat like trying to compare a thousand hand grenades with one A-bomb. The analogy may be a bit exaggerated, but it conveys the basic idea. A single treaty of friendship, commerce, and navigation, for example, contains comprehensive provisions in regard to such matters as the rights of entry, residence, and occupation of nationals, the treatment of corporative enterprises, the guarantee of various liberties, the inheritance of or succession to property, the movement of commercial vessels, salvage, economic development, the importation of goods, wares, and merchandise, and related subjects. Such a treaty may well be, quantitatively and qualitatively, vastly more important than a hundred or more agreements regarding such matters as exchange of official publications, assignment of advisory missions, determination of civil air routes, conduct of anthropological research, allocation of broadcasting frequencies, reduction of passport visa fees, cooperative educational programs, and others. It is a matter of perspective. Numbers mean little from the standpoint of comparison. How, for example, can one compare a peace treaty with an exchange-of-notes agreement regarding communication between amateur radio stations? (Department of State, Office of the Legal Adviser, Treaty Affairs, January 20, 1953.) The CHAIRMAN. Secretary Dulles, are you ready for questioning? Secretary DULLES. Yes, sir. The CHAIRMAN. Senator Wiley. Senator WILEY. Mr. Secretary, there has been quoted heretofore the statement that you made in Louisville in 1952, that you are pretty well acquainted with. Secretary DULLES. Yes, sir. Senator WILEY. I read it: You said: The treatymaking power is an extraordinary power, liable to abuse. Treaties make international law, and also they make domestic law. Do you want to amplify that much of that statement? Secretary DULLES. Senator Wiley, what I said there is the same thing which I said in the statement which I have given, namely, that all power is liable to abuse. Certainly the treatymaking power, like every other power given by our Constitution, is a power which is susceptible to abuse. I believe that there is required constant vigilance to prevent abuse of this power as every other power. You will recall in that address I also pointed out that- The CHAIRMAN. Have you a copy of that address here? The CHAIRMAN. Would you like to make it a part of the record? Secretary DULLES. Yes, sir. I pointed out, "There is room for honest difference of opinion as to whether our Constitution needs to be amended as proposed or whether the President and the Senate should retain their present powers for possible emergency use, and at the same time insuring more vigilance to the end that treaties will not undesirably or unnecessarily encroach on constitutional distributions of power. Whatever one's views on this matter, it is surely in the public interest that the whole problem should be thoroughly explored." The CHAIRMAN. We will put that whole speech in the record. (The document is as follows:) TREATYMAKING AND NATIONAL UNITY Address by John Foster Dulles at the regional meeting of the American Bar Association, Louisville, Ky., April 11, 1952 The treatymaking power is an extraordinary power, liable to abuse. Treaties make international law and also they make domestic law. Under our Constitution, treaties become the supreme law of the land. They are, indeed, more supreme than ordinary laws for congressional laws are invalid if they do not conform to the Constitution, whereas treaty law can override the Constitution. Treaties, for example, can take powers away from the Congress and give them to the President; they can take powers from the States and give them to the Federal Government or to some international body, and they can cut across the rights given the people by their constitutional Bill of Rights. This extraordinary power seems to have been deliberately intended by our founders, in order to give the Federal Government untrammeled authority to deal with international problems. They apparently relied upon the fidelity of negotiators to our form of government, and upon the vigilance of the Senate, with the necessity for a two-thirds vote, to protect against abuse of the treatymaking power. Today, many have come to feel that the Executive uses the treaty power to encroach on congressional power and the the Senate gets its opportunity to "advise and consent" so late that it has either to accept Constitution-stretching treaties it does not like, or imperil our international position by rejecting what has already been agreed upon with foreign governments. When it came to negotiating the Japanese Peace Treaty and the security treaties with Japan, Australia and New Zealand, and the Philippines, we tried to adhere faithfully to what, I believe, was the constitutional intent. 1. We avoided a security formula which might have increased the constitutional power of the President and diminished that of the Congress; 2. We avoided making human rights a matter of international, rather than domestic, concern; and 3. We brought the Senate, through its Foreign Relations Committee, into the treatymaking process from the beginning. THE SECURITY FORMULA The security treaty between Japan and the United States places no obligations of any kind on the United States because the Japanese were not yet in a position to give any undertakings of their own with respect to contributing to the common cause of security. There is no reason why the United States should assume onesided commitments. Therefore under the treaty the United States gets an option to station its Armed Forces in and about Japan, but the United States is under no obligation to do so nor are we legally bound to defend Japan. So long as Japan is threatened and unable to defend herself, we shall no doubt find it to the mutual interest of the Japanese and ourselves to exercise the options which the treaty gives us and thereby deter hostile action against Japan. However, that is for us to decide in accordance with our constitutional processes and the treaty does not alter those processes by one iota. In the case of the security treaties with Australia, New Zealand, and the Philippines, we used the Monroe Doctrine formula, namely, that the parties recognize that an armed attack on any of the others would be dangerous to its own peace and security and would act to meet the common danger in accordance with constitutional processes. This formula had shielded this hemisphere for 125 dangerous years and the Governments of Australia, New Zealand, and the Philippines found that formula entirely acceptable to them. Thus we achieved collective security without encroaching on the constitutional powers of the Congress. HUMAN RIGHTS The Italian and satellite peace treaties had made human rights a matter of a treaty obligation and there is under negotiation an International Covenant on Human Rights. Few will question that human rights are of paramount import |