fenses, but the report of the section of our organization, the American Bar Association, on international and comparative law, makes the statement that a United States citizen, although charged with an offense committed in the United States, if brought to trial by an international criminal court for an offense against international law, would not be entitled to the safeguards guaranteed by our Federal Constitution to persons charged with offenses against the United States on the theory that such constitutional safeguards have application only to domestic offenses and trials in our own domestic courts. I say I disagree with that, but that shows the extent to which the proponents of this new concept of the purpose and function of treaties are willing to go.

Senator FERGUSON. You mean the bar or committee felt?

Judge PHILLIPS. The section on international law with which our committee is crosswise.

Mr. HOLMAN. The section recommendation was not adopted by the bar.

Judge PHILLIPS. That is right. The section on international comparative law makes that assertion in their report. The house of delegates did not accept that, and we disagreed with it, but it indicates how far at least a segment of our people, good people, I think people of integrity and of purpose are willing to go to cure what they regard as social evils by this method.

Now we have proposed, and the house of delegates of our association, our official body, have approved a proposed amendment. The text of it is already before you, and I will not stop to read it. If adopted, the amendment will prevent a treaty from becoming internal law in the United States by force of its self-executing terms. It will modify the holding of Missouri v. Holland, and restrict the power of Congress in enacting legislation to implement a treaty to the legislative powers that it would have in the absence of such treaty and will negative the inherent power theory laid down by the broad language of United States v. Curtiss-Wright Corporation.

Senator FERGUSON. Could I interrupt you there?

Judge PHILLIPS. Surely.

Senator FERGUSON. Would it interfere with the philosophy that has been expressed by your international section?

Judge PHILLIPS. I am sure it would.

Senator FERGUSON. You see, that is an outside court for a matter made criminal.

Judge PHILLIPS. My answer to that is that as far as international crimes are concerned, Congress has power to define them and provide for their punishment, but it will be in the domestic courts of the United States and not in some foreign tribunal.

Senator FERGUSON. You think that the provision in the Constitution in relation to international crimes, in part that would allow that, would limit our ability in Congress to have the crimes triable in the United States court?

Judge PHILLIPS. I think so.

Senator FERGUSON. Not an international court?

Judge PHILLIPS. I do not believe that with this provision in the Constitution as we suggest that we would constitutionally bind this Government to adhere to an international court to try persons accused of offense against international law and certainly not to try

TREATIES AND EXECUTIVE AGREEMENTS

offenses which under our system are regarded as domestic. I think genocide deals with many things that are domestic and not international. If the amendment does not do that, it ought to be broadened. Senator O'CONOR. Judge, may I ask you at that point whether you will express any opinion with respect to the language of the American Bar Association proposal as compared to the Bricker proposal now or later?

Judge PHILLIPS. I will later if you desire.

Senator FERGUSON. I do not mean to keep interrupting you, Judge. Judge PHILLIPS. I am used to that.

Senator FERGUSON. I am disturbed about the ruling of the CurtissWright case which gives, let us say, absolute power because as you say a law that does not comply with the Constitution is unconstitutional, but it does not say that the treaty shall be in compliance or in conformance with the Constitution.

Then the Court said that the United States being a sovereign power has all the sovereignty and one of the parts of the sovereignty is the right to deal with foreign nations. That would give them the right to pass on the questions of an international court, would it not, by treaty?

Judge PHILLIPS. Yes.

Senator FERGUSON. And make, let us say, a crime committed, for example, here in the District of Columbia an international crime triable by that court if they could get jurisdiction.

Now your amendment, the words you read, did not seem to cover that kind of proposition.

Judge PHILLIPS. I think we change the Curtiss-Wright rule because we limit it to delegated power so far as enabling legislation is concerned.

Senator FERGUSON. So far as Congress is concerned, you are specific. You say it does not decrease the capacity of Congress nor does not diminish the capacity of Congress. But what about a treaty that we might pass?

Mr. HOLMAN. If I may interrupt, Judge, your last sentence which you called my attention to last night does that very thing because it is not merely the delegated powers but the delegated powers you have in the absence of anything in the treaty.

Judge PHILLIPS. Of course, under our proposed provision Congress cannot pass a law following a treaty that it could not pass if there had been no treaty. Your point is a little deeper.

Senator FERGUSON. Yes.

Judge PHILLIPS. Your point is whether or not you could enter into a treaty which would authorize, give jurisdiction to an international criminal court.

Senator FERGUSON. Let us take the genocide treaty.

Judge PHILLIPS. Of course, if I am right it conflicts with the provision of the Constitution. If I am wrong about that it perhaps should be spelled out more specifically. I do not believe you can take an American citizen and try him for any offense, especially in light of the fact that the Constitution gives the right to the Congress to define the punishment for international crimes.

I do not believe you can carry off a United States citizen and take him to a court in Timbuktu and try him there for an international crime.

Senator FERGUSON. That is true, but suppose we make a treaty? Judge PHILLIPS. If we make a treaty, I do not think you can deprive a citizen of the right against self-incrimination and the right to counsel.

Senator FERGUSON. Then there is a limitation on the power to make treaties?

Judge Phillips. It is limited that way. I think that is contrary to an express provision of the Constitution. I think that limitation is there.

Senator FERGUSON. Is that the test, that if there is no express limitation we can make a treaty?

Judge PHILLIPS. We say emphatically what the Supreme Court has said by dicta that it shall not be of any force and effect. We put that in. That removes any debate whether or not the dicta of the Supreme Court is law.

Senator FERGUSON. That would alter the Curtiss-Wright case enough to say that the Constitution was the controlling power rather than the fact that we were a sovereign nation was the controlling power?

Judge PHILLIPS. That is right. Then we say under its delegated powers.

Senator O'CONOR. May I go one step further in that regard? Yesterday the representatives of the bar of the city of New York admitted that under present circumstances and by the exercise of the treaty-making power rights presently reserved to the States may be invaded and there may be the treaty provisions which would bring about a diminution in the rights of the States. Do you agree with that?

Judge PHILLIPS. Absolutely.

Senator O'CONOR. Would it not be true then that if that could be done in a single instance that gradually there could be by the cumulative effect of treaties added one on the other little by little the rights which presently are safeguarded in the States, they could be certainly taken away in toto?

Judge PHILLIPS. That is my fundamental premise, that this is necessary to protect and reserve the rights of the States against encroachment through the treaty-making power. I tried to state that in the beginning.

The CHAIRMAN. Let me show you how far that is now in the course of being accomplished. I have here in my hand a treaty that is now before the Foreign Relations Committee of the Senate. Article VIII, and remember this applies equally under the favored-nation clause to all

Nationals of either party shall not be barred from practicing the professions within the territories of the other party merely by reason of their alienage, but they shall be permitted to engage in professional activities therein upon compliance with the requirements regarding qualifications, residence, and competence that are applicable to nationals of such other party.

I just wanted to show you how far that is going down into the municipal life.

Judge PHILLIPS. That would of course encroach upon the power of the States to regulate the learned professions.

Mr. SCHWEPPE. I am Alfred J. Schweppe, chairman of the committee on peace and law through the United Nations of the American

Bar Association. The important thing about that is this: We have had provisions in other treaties relating to certain of the professions where on a reciprocal basis citizenship was not required.

This is the first time in which they have included the practice of law.

Senator FERGUSON. And made all professions eligible.

Mr. SCHWEPPE. And made all professions eligible to practice in the United States regardless of alienage. I think it is important as to doctors. In the State of Washington where I come from, and I have already sent letters to all the bar associations of the United States and have had reactions.

The first requirement is that you be a citizen of the United States, every lawyer must take the oath that he will support the Constitution of the United States. That is the number one requirement. Where are we going if we are going to make treaties where the professions of this country can be manned by people who cannot swear to uphold the Constitution of the United States because that is not their primary allegiance?

The CHAIRMAN. They are not required to.

Mr. SCHWEPPE. That is right. We have a requirement in our State covering the teachers in the common schools and high schools. Certainly at the common and high school level they should be. This treaty would apply to all teachers and would eliminate that. Where are we going?

Senator FERGUSON. With the favorable nation clause that the Senator has read, it would make this treaty applicable to other nations? Mr. SCHWEPPE. To 35 nations. According to Senator Hickenlooper we have 35 nations to which the more favorable nation clause would apply.

Senator FERGUSON. If they can do it piecemeal, Judge, there is no reason why they could not do it in one swoop, is there?

Judge PHILLIPS. That is right.

Senator FERGUSON. Not necessarily limited to the creeping paralysis. Judge PHILLIPS. The only thing, the approach might be more insidious and the danger might be less appreciated. But if you take a good many chops at the apple, it would be the same thing.

Senator FERGUSON. We get one bite here, but then we have another provision that makes the bite go to 35 nations.

Judge PHILLIPS. Yes.

I think, gentlemen, that the amendment which is proposed, to reiterate, will prevent the self-executing terms. It will modify the holding of Missouri v. Holland, which I think is extremely important, and restrict the power of Congress in enacting legislation to implement a treaty to the legislative powers that it would have in the absence of such treaty.

First, the treaty itself does not become internal, it cannot be made internal law of Congress unless Congress could pass the legislation under constitutional legislative powers and absent the treaty. It will negative, I think, the inherent power theory laid down by the broad language of U. S. v. Curtiss-Wright.

Senator FERGUSON. You knew, did you not, that in effect they argued in the Supreme Court that because of NATO, the treaty, that that

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would give to the President the power to seize property to fulfill the terms of NATO?

Judge PHILLIPS. No; I did not.

Senator FERGUSON. Mr. Perlman argued that. If you look at the argument you will find that that is one of the things which came up. Judge PHILLIPS. It is the basis of the contention of many people that we have a treaty, here is a treaty and we can implement it, and we can fulfill the treaty. The opponents say that that would place unreasonable limits on the Federal Government. Congress can conclude peace, and it customarily does so by joint resolution.

Under its power "to regulate commerce with foreign nations," Congress can implement treaties of friendship, commerce, and navigation-a field which embraces a large portion of the treaties negotiated between the nations. We all know the extent of the commerce clause as presently construed, it is extremely broad.

Congress has the power to define and punish piracies and offenses on the high seas and offenses against the law of nations. Under that power Congress can implement treaties dealing with such offenses or can define and provide for the punishment of such offenses without any antecedent treaty. It is my concept that they have to do that in our own domestic courts, and I am fearful that Senator Bricker's provision does not go far enough.

Senator FERGUSON. So that is one point that ought to be given consideration?

Judge PHILLIPS. That is correct. Under that power Congress can implement treaties dealing with such offenses or can define and provide for the punishment of such offenses without any antecedent treaty. The foregoing are but illustrations which could be multiplied in other fields such as extradition, judicial assistance, and the like, and such treaties will become the supreme law of the land to the extent that they are made so by act of Congress legislating within its delegated powers.

It has been further asserted that the treaty-making power as it now exists is essential in a dual or Federal-State governmental system such as ours. That argument, in my opinion, is untenable. It may be that the proposed amendment would exclude some areas in which treaties are now made or proposed, but that presents no insoluble problem if occasion arises where such a treaty is desirable because as was pointed out by the Judicial Committee of the Privy Council in Canada versus Ontario, a treaty to the effect that when a treaty embraces provincial classes of subjects they must be dealt with by the totality of powers, dominion and provincial legislatures together, in other words, by cooperation between the Dominion and the several Provinces.

Here, the same end can be attained by cooperation between the Federal Government and the States. Such a procedure would give due recognition to the reserved powers of the States.

Now it is also suggested by many who oppose our views on this subject that such a limitation on the power of the Federal Government is quite unnecessary because the Senate will never approve a bad treaty. I hope that is true. I express no lack of confidence in the judgment and fitness on that score.

The CHAIRMAN. I am not ready to go along with that.
Senator FERGUSON. You are very charitable.