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The amendment is clearly intended to limit the present constitutional authority of the Executive to conduct the foreign relations of the United States. It prohibits certain types of foreign agreements and requires that many others, now the concern of the Executive, be subject to Senate ratification. In my opinion, there is no time when flexible authority to negotiate with foreign governments is more important than in time of war or national emergency arising from the threat of war. With the economic and military interdependence of the nations of the free world constantly increasing, it is clear that mobilization of our economic and military resources for national defense is unavoidably interwoven with similar activities of the other nations and can be efficiently achieved only on the basis of mutual undertakings among allies. Negotiation of agreements of this kind would be a day-to-day activity in the event of all-out war and is important to emergency mobilization at any time.
During World War II various international agreements were entered into to meet mobilization problems. In the emergency period before Pearl Harbor, by joint announcement of the President and the Canadian Prime Minister, we set up the Permanent Joint Board on Defense to coordinate plans for military, naval, and air defense of North America. This agreement was soon followed by the Hyde Park Agreement with Canada in which the two nations declared that each should provide the other with defense articles which it could best produce quickly and that the production programs of each should be coordinated toward that end. This pooling of the productive resources of the two countries was of great importance to our mobilization program and an appropriate exercise of the authority given the President to direct production for national defense. The agreement, of course, was implemented by the use of statutory powers granted to the President by the Congress, but the agreement itself was essential to the program. As you know, a similar agreement with Canada was entered into to meet the needs of the present national emergency.
Other agreements were entered into during the war with respect to other resources and with other countries. You will remember, I am sure, the Combined Shipping Board which made possible the maximum utilization of merchant vessels for the common purpose. Shipments of strategic materials and weapons of war, as well as the use of port facilities, were thus coordinated without regard to the nationality of the vessels concerned. In their own areas, the Combined Raw Materials Board and the Combined Production and Resources Board did much to coordinate expansion and production programs in order to achieve the balanced military effort that was essential to successful prosecution of the
All of these cooperative wartime activities were rooted in international agreement. Although they depended upon the exercise of internal authority of the countries involved and may not have been strictly binding on the participants under the principles of international law, the agreements resulted, at least, in moral commitments arising from our common objective. I am not sure that the term "executive agreements" as used in Senate Joint Resolution 130 would include mutual undertakings of the type referred to, but since the clear purpose of the amendment is to limit the President's authority to negotiate with foreign governments, serious doubts as to the constitutionality of such undertakings would arise and would detract from their effectiveness and diminish the enthusiasm of our allies for attempting cooperative action. Agreements of this type would sometimes effect the rights of citizens of the United States referred to in section 1 of the proposed amendment to the Constitution, and it might be argued that the joint boards or commissions necessary in such cases were international organizations under section 2 of the article. Furthermore it is difficult to predict the form or scope of international agreements which may be necessary to the national safety in time of war. The limitations proposed by Senate Joint Resolution 130 might completely bar some undertaking vital to our defense.
Because of my present position I have confined my principal remarks to the field of mobilization for war or national defense. Beyond that area of concern, it does seem that the amendment contravenes the theory of separation of powers in removing from the President a portion of the authority which according to political and legal history should reside in the Executive.
I feel most sincerely that the conduct of our defense arrangements through foreign relations in time of emergency would be greatly hampered by the proposed amendment to the Constitution. Sincerely yours,
HENRY H. FOWLER,
DEPARTMENT OF LABOR,
Washington, June 12, 1952. Hon. Pat McCARRAN,
United States Senate, Washington, D. C. DEAR SENATOR MCCARRAN: Reference is made to your letter of June 3, 1952, in response to my letter of May 29, 1952, requesting an opportunity to testify on Senate Joint Resolution 130, a proposal to amend the Constitution relative to the making of treaties and executive agreements. In accordance with the wishes expressed in your letter, my views on Senate Joint Resolution 130 are contained herein in lieu of presentation in the form of oral testimony before the subcommittee considering the resolution. Your letter indicates that these comments will be incorporated into the record of the hearings on this resolution.
First I desire to express my whole-hearted concurrence in the views of the Under Secretary of State who has appeared before the subcommittee in opposition to Senate Joint Resolution 130. As he stated, this proposal "concerns every agency of the Government which operates in the foreign field.” It is of concern to the Department of Labor because this Department is responsible for United States Government participation in the International Labor Organization, subject, of course, to the over-all foreign policy guidance of the Department of State. I am particularly anxious to present my views to the subcommittee considering Senate Joint Resolution 130 because it appears that some of the momentum for the proposed amendment has been provided by charges that ILO conventions may be used, under the treaty-making power of the United States, to usurp the legislative powers of the Congress and to enable the Federal Government to encroach upon the powers of the States. Such charges are evidently based upon serious misconceptions of our participation in the International Labor Organization and they should not be permitted to remain unchallenged on the record of the hearings on Senate Joint Resolution 130. I might point out that similar charges, based upon similar misconceptions, have been made by Senator Bricker in connection with his introduction of Senate Concurrent Resolution 83 on June 5, 1952 (Congressional Record, p. 6700).
The efforts of the ILO to improve living and working conditions through international cooperation are in accord with the positive approach of United States foreign policy, as exemplified by the Marshall plan and the point 4 program, to remove the economic and social climates which breed communism. During this period of world affairs, in which there has been a determined effort on the part of totalitarian regimes to spread their ideologies and encroach upon the democratic world, there nevertheless appears to be in this country an increasing and unwarranted concern with the possibility that, through our association with other countries in the activities of the ILO and other international organizations, we may be committing ourselves to certain obligations with respect to matters which are foreign to our democratic institutions.
I want to point out that with respect to the International Labor Organization the United States is under no obligation whatsoever to take any actions which are not in accord with our social and economic philosophy and with our national and international objectives. On the contrary, we are in a position to use our influence in the ILO to promote concepts which will serve our fundamental objectives of strengthening democracy and economic stability throughout the world. We have no better opportunity to do this than in the ILO, where independent representatives of American industry and labor are present, with full participating and voting rights, to present the American way and to promote our interests.
As a member of the International Labor Organization, we are completely free to determine what implementing action, if any, we shall undertake with respect to the standards adopted by the ILO at its annual conferences. As you know, these standards are adopted by a two-thirds vote of the conference, at which delegates representing management and labor, as well as governments, from the member countries have a vote, and they are in the form either of conventions or recommendations. Conventions are proposed-and I stress the word "proposed”-treaties. Recommendations are not proposed treaties, but are statements of objectives or principles.
There appears to be some misunderstanding as to our obligations, as a member of the ILO, with respect to these matters. First, let me say emphatically that we are under no compulsion to ratify any of the conventions that are adopted at ILO conferences. The fact that out of the total of 54 conventions adopted since we became a member, the United States has ratified only 6, should be persuasive evidence that the adoption of a convention by the conference does not impose that convention upon a member government of the ILO.
Under the ILO constitution we do have an obligation to follow certain procedures with respect to conventions, but this involves no obligation as to the decisions this country will make concerning ratification or oth action to implement the convention in the United States. We do have an obligation to refer the conventions, within a specified time period, to the “competent authorities" to consider the enactment of legislation or other action. Conventions which are appropriate for Federal action under cur constitutional system are submitted either to the Senate for advice and consent to ratification or to the Congress for such action as Congress itself considers appropriate. In the case of recommendations, we have the same obligation to refer them to the "competent authorities” for their consideration of legislative or other action,
It should be emphasized that each convention and recommendation is referred to the appropriate Federal or State authorities for consideration as to the action to be taken toward implementation of the standards proposed therein. Decisions to make any changes in Federal or State legislation to give effect to any of the provisions of these standards are taken in each case by the legislative bodies of the Federal Government or of the State governments. There is full freedom of determination on the question of the action that we may or may not take to implement the standards in the United States; and these determinations and actions are made in accordance with our constitutional system.
There is another obligation we have as a member of the ILO; and this is an opportunity as well as a duty. This Government, under the amended International Labor Organization constitution, has a duty to report at appropriate intervals as requested by the governing body of the ILO on the position of the law and practice of the Federal Government and of the States, in regard to the matters dealt with in recommendations and unratified conventions.
The United States strongly supported the changed requirements in the amended ILO constitution with respect to reporting on recommendations and unratified conventions for the reason that in many instances State and Federal legislation has already surpassed the standards set in these various International Labor Organization conventions and recommendations. Consequently, we believe that the present provisions which do not limit such reporting to conventions which have been ratified, make it possible more accurately to reflect the position of the United States with respect to the subject matter of these conventions and recommendations; and thereby to benefit to the extent that this may encourage other countries to meet these standards.
In short, in our consideration of any convention adopted by the International Labor Organization, the United States has complete freedom of action to determine under our constitutional system how it may best take action with respect to such convention in order to promote the best interests of the United States.
The testimony before this subcommittee of Mr. McGrath, who has been for several years a member of the employers' delegation to the annual conference of the ILO, is an example of the misconceptions which exist with respect to the implications of our participation in the ILO. He charges among other things that "the ILO has gone far beyond the field of labor and is seeking to set itself up as a form of international legislature to formulate uniform domestic socialistic laws which it hopes, by the vehicle of treaty ratification, can eventually be imposed upon most of the countries of the world." The ILO, Mr. McGrath says, "seeks to inject the principle of internationalism into domestic legislation and destroy the principal of local self-government." These statements are completely incorrect.
The fact, as described in detail above, is that our membership in, and participation in the activities of, the ILO create no obligation in the United States to enact or change any legislation. Our action depends on what we consider to be our best interests. As a general rule, labor standards in the United States are as high or higher than those provided in ILO conventions and recommendations. A major objective of our participation in the ILO is to let the rest of the world know of the high standards prevailing in this country. I think all of us are aware of the desirability of improving the conditions of labor in other countries in order to advance democratic institutions, to provide the social and economic foundations for a peaceful world, and to protect our own industry from the competition of low labor standards in other countries. The development of international labor standards, whether in the form of conventions or recom
mendations, the provision of technical assistance in the labor field, and the collection of statistics and other information on labor matters by the ILO serve these objectives.
Certainly these international standards relate to matters which are in the field of domestic legislation in the various participating countries, the same as are the matters dealt with by the World Health Organization, the Food and Agriculture Organization, and other international organizations. To say that these organizations should not deal with such matters would drastically hamper our efforts toward international cooperation.
It is appreciated that participation in international activities which relate to matters in the domestic field is something which requires care and deliberation. In our ILO activities, the position to be taken by the United States on standards under consideration is formulated only after consideration by all the interested agencies of the Federal Government, acting through a formal interdepartmental committee known as the Committee on International Labor Policy. In addition, the Government delegation to each annual conference usually includes one or more representatives of the Congress and frequently a commissioner of labor from one of the States.
After a convention is adopted by an International Labor Conference it is carefully reviewed by the executive branch to determine whether it should be submitted to the Senate for advice and consent to ratification, taking into consideration (1) whether it relates to matters which are appropriate for State rather than Federal action and (2), in the case of a matter on which Federal action is appropriate, whether it should be submitted to the Senate for advice and consent to ratification or to the Congress as a whole for its information and such action as the Congress may consider appropriate.
Of the 18 conventions listed in Mr. McGrath's testimony before this subcommittee as illustrations of “the extent to which the ILO is attempting to invade the field of domestic legislation" only 3 have been submitted to the Senate for advice and consent to ratification. One of these, No. 63, deals with standards for the collection of labor statistics and does not, as Mr. McGrath states, “set up Federal machinery for gathering statistics." This convention, incidentally, was voted for by the United States employer delegate at the conference when it was adopted. Ratification of this convention would require only minor additions, in the Territories, to the labor statistics which are now collected.
Convention No. 87, dealing with freedom of association of employees and employers and protection of the right to organize, was also submitted to the Senate for ratification since our present law (the Taft-Hartley Act) and practice are considered to be in conformity with the provisions of the convention. The employer delegate, as well as the other members of the United States delegation, voted for the adoption of this convention.
The third convention, of the 18 cited by Mr. McGrath, submitted to the Senate for ratification is No. 88, dealing with the organization of public employment services. The adoption of this convention, which is not, as described by Mr. McGrath, “a draft of a law setting up a Federal Employment Service," was voted for by the entire United States delegation at the ILO Conference, including the employer delegate. Ratification of this convention would not alter existing law or practice in the United States since we already have, under the Wagner. Peyser Act, a system of Federal-State public employment offices conforming to the standards provided in convention No. 88.
None of the remaining 15 conventions listed in Mr. McGrath's testimony has been submitted to the Senate for ratification. It may also be noted that nine of these conventions were supported by the United States employer delegate at the ILO Conference at which they were adopted.
Mr. McGrath has submitted that some of the subjects of these conventions "are covered by State laws rather than Federal laws, and belong, therefore, most definitely in the province of local self-government.” As you know the constitution of the ILO makes special provision for federal states, such as the United States, under which the Federal Government submits to the States for appropriate action those conventions appropriate, in whole or in part, for State rather than Federal action. This procedure has been praised by many students of international law as the best possible solution for dealing internationally with the Federal-State problem. Last February, the house of delegates, the principal policy-making body of the American Bar Association, adopted a resolution on this subject, as follows:
“Resolved, That the American Bar Association is of the opinion that the participation of the United States in international measures for the promotion of human rights and fundamental freedoms should be provided for within a framework similar to that of the International Labor Organizations.”
There has been a great deal of misunderstanding on the part of Mr. McGrath, as well as others, including Senator Bricker, about the proposed Convention on Minimum Standards of Social Security, which the ILO is now considering, and the position of the United States Government with respect to it.
The subject of social security is not new to the ILO. It was not suddenly placed on the ILO Conference agenda as a new subject for the purpose of socializing insurance throughout the world. As far back as 1920, the ILO concerned itself with various aspects of social-security questions and over a period of 30 years it has adopted a number of standards in this field in the form of conventions and recommendations. Because of the number of such standards that have been adopted over a period of years, the governing body of the ILO (on which management and labor as well as governments are represented) decided that it would be advisable to review the field as a whole for the purpose of attempting to correlate the various separate standards.
The International Labor Conference, in the summer of 1951, began its consideration of this subject. The present (1952) Conference is considering the adoption of standards in the form of a convention.
It has been alleged that in the discussion of this subject which took place last year the United States Government voted in favor of the standards being in the form of a convention and that it supported a proposal contained in the draft that voluntary insurance must be subsidized by the Government in order to be considered as conforming with the provisions of the convention. The impression has also been given that "the convention was passed by the Conference."
None of these allegations is correct. First, no convention on this subject “was passed by the Conference,” for no convention on social security was up for adoption in 1951. Further, as to whether the standard should take the form of a convention or a recommendation, the Government representative to the 1951 Conference did not support the form of convention and took no position on the question of form, awaiting clarification as to the content of the standard. In fact, in the spring of this year, in the Official Observations of the United States Government to the ILO on this subject, we stated our preference for a recommendation rather than the convention form. In an earlier reply to an ILO inquiry on the subject of this convention, the United States said: “The subject matter of the proposed convention is, in the United States, at present regarded as appropriate in part for Federal action and in part for action by the constituent States."
The employers participating in the committee of the Conference considering this subject, incidentally, although favoring the form of a recommendation for the over-all standard, at one point in the deliberations of the committee proposed that the subject be broken down into each of the branches concerned (that is, unemployment benefits, old-age benefits, workmen's compensation, invalidity benefits, etc., a total of nine branches being involved), with the standards for each being developed as conventions.
In other words, it does not appear that the employers, including the United States employer representatives, opposed the consideration of each of the nine branches individually as conventions. It might be pointed out that, if a convention encompassing all nine branches is adopted this summer, a government which might choose to ratify the convention would not have to adhere to the standards set forth for all of the branches. If the standards do take the form of a convention, a country which wishes to ratify may do so on the basis of a minimum number of the nine branches which it selects.
Second, the United States Government representatives voted against the proposal that voluntary insurance must be subsidized by the public authorities in order to qualify for ratification with respect to the branch concerned. The record is clear concerning United States Government opposition to that provision. The following statement was made by the United States Government representative at a plenary sitting of the Conference concerning this matter:
"In order to keep the record clear, it should be noted that in the vote in the Committee on Social Security as to whether voluntary insurance must be subsidized by the public authorities, which was carried by a small margin, the representative of the United States Government voted in opposition.
"Certainly in voting in favor of placing the item of minimum standards of social security on next year's agenda, the United States Government does not take the position that the instrument is now perfect. There are a number of points on which we believe modification is desirable, but we do believe the mate rial developed is a starting point for further consideration."