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The more immediate objection of the Department of Defense to such a limitation of the treaty-making power relates primarily to the negotiation of agreements giving rights and benefits to our troops in foreign countries. As previously indicated, reciprocity is often an important factor in the success of the negotiations. For example, under the treaty relating to the status of NATO forces, which has been signed and awaits ratification, the various NATO countries will not require members of United States forces who have United States rivers licenses to take a driving test. We have agreed to a similar recognition of the drivers' licenses of the NATO forces visiting in this country. If treaties could be implemented as internal law only to the extent of the delegated powers of Congress, we might not be able to live up to our part of the bargain. Drivers' permits are a matter of State law.
So are State taxes. Under this same treaty members of a visiting force are generally exempt from income taxes levied in the country where they are visiting. Certainly such an exemption would be difficult to obtain for our troops if we were not able to promise visiting NATO forces exemption from our State income taxes. Effect on eristing and future base agreements
Section 4 of Senate Joint Resolution 130 provides :
"Executive agreements shall, if not sooner terminated, expire automatically one year after the end of the term of office for which the President making the agreement shall have been elected, but the Congress may, at the request of any President, extend for the duration of the term of such President the life of any such agreement made or extended during the next preceding Presidential term.
“The President shall publish all executive agreements except that those which in his judgment require secrecy shall be submitted to appropriate committees of the Congress in lieu of publication."
This section, more than any other, could cause extensive harm to our defense program. Consider those executive agreements which give the United States base rights around the world. Everyone knows how essential these are to our security. They have been obtained through long and difficult negotiations, and in a few cases for a substantial consideration. The following are examples of these agreements: (1) Leased Naval and Air Bases Agreement, U. S.-U. K., signed March 27,
1941 (EAS 235) (2) Military Bases in the Philippines, U. S.-Philippines, signed March 14,
1947 (TIAS 1775) (3) Bahamas Long Range Proving Ground, U. S.-U. K., signed July 21, 1950
(TIAS 2099) (4) Defense of Greenland, U. S.-Denmark, signed April 27, 1951 (TIAS 2292) (5) Air Base at Dhahran, U. S.-Saudi-Arabia, signed June 18, 1951 (TIAS
2290) (6) Defense of Iceland pursuant to North Atlantic Treaty, U. S.-Iceland,
signed May 5, 1951 (TIAS 2266) (7) Defense of Iceland pursuant to North Atlantic Treaty--Status of U. S.
Personnel and Property, U. S.-Iceland, signed May 8, 1951 (TIAS 2295 ) The administrative agreement recently concluded with the Japanese Government is another example of an agreement relating to the use by the United States of facilities and installations in foreign territory. It is quite comprehensive and detailed, since it is designed to deal with all the technical problems involved in maintaining substantial United States forces in Japan. Under the agreement, the Japanese will make facilities and areas available to us, without cost, when it is agreed by the two Governments that such areas are needed for carrying out the defense mission of the United States forces. The agreement also provides that the United States may construct any necessary military structures and facilities, and the construction of these items, as well as procurement in Japan of other items required for the support of our forces, will be relieved of all Japanese taxes. The agreement also provides for certain standard operating rights which are essential to our military operations in foreign countries, such as rights of access, the right to use public utilities and services, to receive meteorological and climatological information from the Japanese Government, and so on. I think it is important to recognize that an agreement of this sort contemplates fluidity in the deployment of forces, and, for that reason, the particular facilities and areas to be occupied by United States forces are left to future considera
tion and agreement by the authorities of the two Governments in Japan. This agreement will be effective throughout the period of the security treaty.
The effect of section 4 on such existing agreements is not perfectly clear, but one possible interpretation is that they would fail 1 year following the end of the term of the President in office at the time the amendment is adopted. To be sure, Congress might extend them for the term of the following Presidentbut would these extensions be binding on the other parties to the agreements? ('ertainly they could argue that the assertion by the United States of a right to terminate would invest them with a reciprocal right.
The mere prospect of renegotiating all our base-rights agreements is a staggering one. We would have nothing to win and a tremendous amount to lose. The cost would be great, for in those cases involving past consideration, new consideration might be required. Furthermore, the bargaining position may have changed. On top of this, our base construction program would be brought to a halt, at this most critical time, until completion of the renegotiations.
The automatic expiration clause of section 4 would have a disastrous effect with respect to base agreements to be negotiated or renegotiated in the future. It is obviously undesirable to place a short and arbitrary limit upon the period for which such rights are to be obtained. For one thing, the useful life of adequate installations would be several times longer than the period provided in the section, even where an agreement was negotiated at the beginning of the President's term. Of course, it would be possible to proceed with construction in the hope that the agreement could be renewed, but this would not be economical.
In this connection, Senate Joint Resolution 122 is equally objectionable. It contains a similar limitation upon the effective period of an executive agreement, and paragraph 2 of section 1 would seem to make executive agreements of this nature even more transitory, for it might make the obligations of the United States under any such agreement completely voidable. It would seem reasonable that any country entering into an agreement with the United States would wish to have its obligations similarly voidable. If such had been the arrangement in the leased bases agreement of 1941, for example, the United Kingdom could, today, without any violation of her international obligations, take back from the United States by a simple act of Parliament base rights, which we presently have under a 99-year lease, in Bermuda, the Bahamas, Jamaica, St. Lucia, Antigua, Trinidad, and British Guiana.
This problem is not resolved by the use of treaties instead of executive agree. ments. One very important reason is the fact that certain bases can be obtained only by executive agreement-for political or other reasons the grantor nations refuse to invoke the treaty process.
Another important consideration is the fact that the treaty method will often take too much time. This will be the case where a sudden and urgent need for a base arises which calls for instant action. In such a situation we will not be able to afford the delays involved in ratification and implementation, whether or not Congress happens to be in session.
Finally, it should be emphasized that practically all agreements in which the Department of Defense is involved relate to operational situations of a changing character. Consequently, the agreements must be under constant surveillance so that modifications may be made where necessary to meet current and anticipated needs. The delay and rigidity of the treaty process make it unsuitable for dealing with these problems.
There is another provision of section 4 of Senate Joint Resolution 130 which might be interpreted to compel the use of the treaty process for obtaining base rights, eren in those situations where the process is impractical. It is the first sentence of the section, which says that executive agreements shall not be made in lieu of treaties. This certainly implies that certain types of agreements may be made only in the form of treaties, but it does not indicate what those types are. Could it mean that once a particular matter has been handled by a treaty with one country, then all other agreements on the same subject matter with other countries would also have to be treaties? I am sure that this is not intended, but it is an ambiguity which would not be resolved for many years and which would throw doubt upon the validity of many agreements.
A final objection to section 4 of Senate Joint Resolution 130 is also applicable to section 3. If those sections were adopted, the Congress would be overwhelmed with a mass of business, much of it administrative in character, which it has neither the time, the organization, nor the propensity to deal with. This in. creased workload would result from the extra step added to the treaty process by section 3; it would result from the fact that section 4 requires the use of treaties in many situations where executive agreements would be perfectly proper and appropriate; and, finally it would result from the quadrennial review required by section 4 of all our many executive agreements. This added burden would be a serious impediment to the legislative process and to the proper functioning of our Government.
For the foregoing reasons, the Department of Defense recommends that the resolution be disapproved. Sincerely yours,
CHARLES A. COOLIDGE.
Washington, June 13, 1952.
United States Senate, Washington, D. C. MY DEAR MR. CHAIRMAN: The attention of this Department has been directed to Senate Joint Resolution 130, a proposal for a constitutional amendment dealing with treaties and executive agreements, which is under consideration in the Committee on the Judiciary. This Department exercises a number of important functions involving treaties and executive agreements with foreign countries and is, therefore, concerned with the proposed amendment. In the judgment of this Department, the provisions which would be added to the Constitution by Senate Joint Resolution 130 would seriously impair the effective conduct of the responsibilities of this Department involving relations with foreign countries, and the Department, therefore, urges that your committee not approve the proposed constitutional amendment.
The probable effects of the proposed amendment on the functions of the Treasury Department relating to international financial affairs, double taxation treaties, the international control of narcotics, the functions of the Coast Guard, and others administered in this Department will be analyzed in the section-bysection discussion of the proposed amendment which appears below. In general, it may be said that Senate Joint Resolution 130 appears to be based upon the assumption that the Executive has misused his powers to enter into treaties and executive agreements to the point that permanent and detailed prohibitions and regulations must be written into the Constitution. There is no basis for such a conclusion. Two world wars have taught us that we cannot stand aloof from developments throughout the world, because we become inevitably involved. We are now committed, with the general concurrence of our people, to a program of wide international cooperation in an effort to anticipate the causes of international difficulties and prevent them from arising. Only this path seems to offer any hope of avoiding a repetition of the disastrous world wars we have had. Ample safeguards already exist in our constitutional system by virtue of which international undertakings which may have a regulatory effect on citizens of the United States have been submitted to the Senate for ratification as treaties have been taken under prior congressional authorization or have been submitted to the Congress for approval. To prescribe a long series of new requirements, some of which might be construed to make the United States wholly impotent in certain fields of its international relations, others which would set up new and elaborate legislative procedures, still others which would transform the President from a responsible agent of the Government in the conduct of its foreign affairs to a personal executive whose undertakings future administrations may freely disregard, would have the effect of crippling the very aspect of our Government which is of the most vital significance today.
The substantive sections of the proposed amendment are each set forth, and then analyzed in the paragraphs which follow, with particular reference to the responsibilities of the Treasury Department. One result would be common to all these provisions. They would all generate a flood of new constitutional litigation which would, for many years, make it impossible for the President to conduct our foreign relations except under the constant threat of a court construction different from his own. The essential ambiguity of the proposed amendment would make this result inevitable.
"SECTION 1. No treaty or executive agreement shall be made respecting the rights of citizens of the United States protected by this Constitution, or abridging or prohibiting the free exercise thereof.”
If this provision is construed to mean that a treaty or executive agreement may not deprive citizens of “life, liberty, or property, without due process of law," or of other constitutional rights of the individual, it is redundant, since that doctrine is already firmly established in our constitutional law.
But the provision may be read to have a far more restrictive effect. If every international agreement affecting property rights or economic liberty is considered to be one “respecting the rights of citizens of the United States protected by this Constitution," even if it enlarges rather than abridges such rights, even if it is consistent with established substantive conceptions of “due process of law," or even if adopted in full compliance with procedures accepted as “due process," the provision would have a crippling effect on our foreign economic relations. If so construed, tax treaties, international agreements with respect to trade controls against aggressor nations, treaties to control the traffic in narcotics, agreements respecting navigation and safety at sea, and treaties de. signed to protect American investors in foreign countries, all would fall under the ban of the amendment, because they can be construed to be agreements "respecting the rights of citizens of the United States" to life, liberty, or property. Under such a broad construction, the United States would be rendered powerless, in large part, to enter into international obligations of an economic character.
"SEC. 2. No treaty or executive agreement shall vest in any international organization or in any foreign power any of the legislative, executive, or judicial powers vested by this Constitution in the Congress, the President, and in the courts of the United States, respectively."
It is difficult to foretell how this language would be applied to the practical situations we have in international relationships today. Thus, to take an example in a field which is of primary interest to the Treasury Department, the several member governments have bound themselves, under the articles of agreement of the International Monetary Fund, not to change the par values of their respective currencies, except under a specified procedure, and under certain circumstances, only with the prior approval of the International Monetary Fund. 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.
Two other instances can be cited from the work of the Coast Guard. The International Conventions for the Safety of Life at Sea (1914, 1929, 1948), and the International Civil Aviation Convention (signed 1944, effective 1947), call for many international gatherings, some regional, that are absolutely essential to the implementation of the basic conventions. They deal with technical and regional matters which could not possibly be dealt with at the time the basic conventions were adopted.
The language of section 2 would not be applicable to our obligations under the fund agreement or under the international conventions dealing with safety at sea, or with civil aviation, in the judgment of this Department, since no constitutional powers have been delegated. Nor does there appear to have been any other instance where it can be said that legislative, executive, or judicial powers have been delegated to any international body or to any foreign government. But if the eifect of the proposed amendment should be read differently, if action such as joining the International Monetary Fund or participating in and accepting international decisions on questions of sea and air traffic should be held to be beyond the constitutional powers of the President and of the Congress, the United States would be unable to join with other nations in seeking international cooperation in economic or technical matters, the complexity of which almost invariably requires some international channel for dealing with the multitude of detailed problems which cannot be foreseen.
"SEC. 3. No treaty or executive agreement shall alter or abridge the laws of the United States or the Constitution or laws of the several States unless, and then only to the extent that, Congress shall so provide by act or joint resolution."
Efforts to secure protection of the interests of citizens of the United States in other countries can obviously be most effective if the United States is in a position to offer protection to citizens of foreign countries under a treaty or executive agreement. Thus, treaties to avoid double taxation or to assure American investors in foreign countries the right to manage their investments and to protection of their title to property required reciprocal obligations on the part of the United States, which may involve modification of Federal or State law.
In some instances, the protection of our own people at home requires international regulation, to which we must subject ourselves if we expect others to do likewise. An outstanding example is the control of international traffic in narcotics. Sections 1 and 3 of the proposed amendment, in the judgment of the Commissioner of Narcotics, "would nullify progress made, and have a paralyzing effect on the achievement of future progress, in the field of national and international control of the narcotic-drug traffic." A detailed analysis of the effects of sections 1 and 3 on narcotics control, submitted by the Commissioner of Narcotics, is annexed to this letter.
The effects of proposed treaties on Federal and State law can be and are exhaustively explored during Senate committee hearings which precede ratification of such treaties. Executive agreements which involve any regulatory effects have, so far as we have been able to determine, been made under express prior congressional authorization (e. g., reciprocal trade agreements) or have been submitted to the Congress for approval (e. g., articles of agreement of the International Monetary Fund). Thus, executive agreements, as well as treaties, which might raise questions of inconsistency with Federal or State law have, in fact, already been subject to review in the Congress.
Various provisions of the Internal Revenue Code provide for tax treatment, under treaty provisions, of items of income in a manner or at a rate otherwise than that provided in the code. Similarly, provisions of the code basing tax treatment upon reciprocal treatment of Americans by foreign countries are frequently made effective by treaties or executive agreements assuring the requisite treatment of the incomes of Americans under foreign tax laws. The interrelationships of our tax laws with a network of international agreements is described in a statement by the Commissioner of Internal Revenue annexed to this letter. Would each of these treaties and agreements have to be submitted for fresh consideration by the Congress, after it had already authorized them?
To require that treaties already ratified by the Senate and executive agreements already authorized or approved by the Congress be scrutinized anew through new legislative procedures, in which it would be open to the Congress to withhold or qualify effective measures to meet international obligations already incurred with its or the Senate's approval, would cripple the conduct of the foreign affairs of the United States. Our leadership in world affairs, and our efforts to secure benefits for American citizens, would be subjected in each case to double congressional ratification, while the hoped-for gains would be postponed again and again. "SEC. 4. Executive agreements shall not be made in lieu of treaties.
"Executive agreements shall, if not sooner terminated, expire automatically 1 year after the end of the term of office for which the President making the agreement shall have been elected, but the Congress may, at the request of any President, extend for the duration of the term of such President the life of any such agreement made or extended during the next preceding Presidential term.
"The President shall publish all executive agreements except that those which in his judgment require secrecy shall be submitted to appropriate committees of the Congress in lieu of publication."
The first paragraph of this section would raise a host of new legal questions. What does it mean to say that "executive agreements shall not be made in lieu of treaties"? Does it mean that no executive agreement can ever be entered into if the subject matter could have been the subject of a treaty ?
Treaties are now in effect with 10 foreign countries dealing with income taxation. Each of these treaties covers, in addition to many other matters, the reciprocal aspects of sections 212 (b) and 231 (d) of the Internal Revenue Code, which provide for the exclusion from gross income of earnings of a nonresident alien or nonresident foreign corporation derived from the operation of any ship documented under the laws of a foreign country or from the operation of aircraft registered under the laws of a foreign country granting an equivalent exemption to United States citizens and corporations. At least eight additional executive agreements cover these sections of the Internal Revenue Code, but not as part of any comprehensive double-taxation convention. While these agreements are simply a practical way of carrying out an express statutory provision, they might be regarded as "in lieu of treaties," since the subject matter has been covered by treaties with other countries. Would they have to be replaced by formal treaties under section 4?