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having failed, they were acquired under a joint resolution of Congress. Texas, also, was annexed by a joint resolution, but, as it was at the same time admitted as a state, it stands in a legal category distinguishable from that of Hawaii. "In 1882, an arrangement was effected between the United States and Mexico, by means of an exchange of notes, for the reciprocal passage of troops of the two countries across the border when in pursuit of hostile Indians. On June 25, 1890, an agreement, in the form of a protocol, was entered into on the same subject, and this agreement was from time to time renewed with amendments. The federal troops of the two countries were permitted to cross the international boundary in pursuit of certain hostile Indians in the uninhabited and desert part of the line, which were defined as 'all points that are at least ten kilometers distant from any encampment or town of either country.' It was expressly stipulated that no such crossing should take place between two certain specified points. There were various other provisions requiring notice of crossing to be given if possible, and permitting the chastisement of other hostiles whom the troops might chance to meet.

"One of the most important agreements ever made by the executive without submission to the Senate was the peace protocol with Spain of August 12, 1898. By this protocol provision was made for a general armistice between the two countries. This stipulation was no doubt within the powers of the president as commander in chief of the army in time of war, but there were other provisions of a different nature and of far-reaching importance. Not only did the protocol stipulate that Spain should relinquish all claim of sovereignty over and title to Cuba, and should cede to the United States Porto Rico and other islands.under Spanish sovereignty in the West Indies and an island in the Ladrones to be selected by the United States, but it also provided that Spain should immediately evacuate' Cuba, Porto Rico, and other Spanish islands in the West Indies, and to this end within ten days should appoint commissioners, who within thirty days were to meet commissioners of the United States at Havana, in Cuba, and San Juan, in Porto Rico, respectively, for the purpose of arranging and carrying out the details of the evacuation of Cuba and the adjacent islands. Commissioners to negotiate the definitive peace were to meet at Paris not later than October 1, 1898. They met accordingly, and, pending the negotiations which resulted in the signature of the treaty of peace on December 10, 1898, Porto Rico was evacuated and the preparations for the evacuation of Cuba were proceeding. It may be said that the evacuation of Cuba was clearly within the scope of the joint resolution under which the president was directed to intervene in Cuba, but this could not be said with regard to the anticipatory evacuation of Porto Rico and other Spanish islands in the West Indies, which was clearly an incident of the cession.

"Another remarkable exercise by the president alone of the power to make agreements with foreign countries is found in the protocol concluded at Peking on September 7, 1901, between China and the allied powers who had cooperated in the march to Peking for the relief of the foreign legations. This protocol was signed on the part of the United States by Mr. W. W. Rockhill, now minister to China, who was then acting as a special commissioner to China by executive appointment alone. It embraced numerous topics, including reparation by China for the murder of the German minister at Peking, the infliction of punishment of the principal authors of the outrages and crimes committed against foreign governments and their nationals, the prohibition by China of the importation of arms and ammunition as well as of the materials exclusively used for their manufacture, the payment to the allies of an indemnity of 450,000,000 taels, the constitution of an extraterritorial quarter for the use of the foreign legations in Peking, the temporary occupation by the powers of certain points in order to keep open the communication between the capital and the sea, and undertakings on the part of China to negotiate amendments to her existing treaties, to improve the navigability of the Peiho river, and to transform her office of foreign affairs into a ministry of foreign affairs, which was to take precedence over the six ministries of state." (20 Political Science Quarterly 385, 390-392).

This partial recitation of examples is quoted at length in order to emphasize the nature of some of the situations which have arisen in our history, and which often demanded the expeditious handling they received. Of course, these are not all of the cases. Moore discusses the postal conventions, the arranagements with foreign powers in relation to commercial reciprocity agreements and the suspension of discriminating duties, extension of the privileges of copyright and the protection of trade-marks, agreements with the Indian tribes which

since 1871 supplanted the use of formal treaties, arrangements regarding fishing privileges of American citizens in foreign waters, the settlement of pecuniary claims, especially of private individuals against foreign governments, and the submission of such claims to arbitration (20 Political Science Quarterly 385, 392-417). To these should be added more recent examples of adherence by this country to membership in international organizations, such as the International Labor Organization, authorization for membership contained in joint resolution, June 19, 1934 (48 Stat. 1182). (See also joint resolution of June 30, 1948 (62 Stat. 1151), accepting amended ILO Constitution of 1946); the Food and Agriculture Organization of the United Nations, authorization for United States acceptance contained in joint resolution July 31, 1945 (59 Stat. 529); United Nations Educational, Scientific, and Cultural Organization, acceptance authorized by joint resolution July 30, 1946 (60 Stat. 712); International Monetary Fund and International Bank for Reconstruction and Development, participation authorized by act of July 31, 1945 (59 Stat. 512); World Health Organization, participation authorized by joint resolution of June 14, 1948; Universal Postal Union, authorization contained in 5 United States Code 372; and the International Refugee Organization, authorization contained in joint resolution of July 1, 1947 (61 Stat. 214).)

There should also be added the many trade and financial agreements and agreements affecting international communications and transportation consummated in the 1930's and 1940's under authorization or policies laid down by acts of Congress, many of which are reviewed in McClure, International Executive Agreements (1941) (pp. 137-189), and see McDougal and Lans, Treaties and Congressional-Executive or Presidential Agreements (54 Yale L. J. 181, 262–282). The Department of Defense has referred in its letter of June 11, 1952, addressed to this committee to the host of agreements and understandings most of which are in the form of executive agreements or arrangements, upon which its many functions and abilities to function abroad depend. They comprehend at least 24 different kinds of subject matters ranging from the right to construct and utilize bases in foreign countries to the disposition of war dead.

It is evident from an examination of the various subjects that most of the executive agreements have been and are in fact congressional-executive agreements based upon the cooperation of the President and the Congress and the merger of their powers. A comparatively small number of the total agreements has rested upon the sole action of the President. These have related to his express and exclusive constitutional powers as Commander in Chief of the Army and Navy, and his diplomatic powers as the sole organ of the Federal Government in the field of international relations, including the power to receive ambassadors and other public ministers. Thus the power to give permission without legislative assent for the introduction into this country of foreign (Mexican) troops was assumed to exist from the authority of the President as Commander and Chief of the military and naval forces of the United States (Tucker v. Alexandroff, 183 U. S. 424, 435 (1902)); and recognition of a foreign government (U. S. S. R.) with incidental settlement of outstanding claims rested on the President's powers to receive ambassadors and other public ministers (United States v. Belmont, 301 U. S. 324 (1937); United States v. Pink, 315 U. S. 203 (1942); and see Fraser, Treaties and Executive Agreements, S. Doc. 244, 78th Cong., pp. 20-27).

Sections 1, 2, and 3 of Senate Joint Resolution 130: To the extent that the provisions of these sections relate to so-called executive agreements, most of the comments already made are applicable. There appears to be no more justification for a limitation on the scope of the subject matter of executive agreements and implementing legislation than in the case of treaties. (See point IIA.) Each may be an appropriate means for the exercise of the Federal power over foreign relations-a power which because it is exclusive must be plenary. As to the question whether an act of Congress is necessary to give an international agreement domestic effect (point IIB), most so-called executive agreements are either authorized or ratified by Congress. Hence section 3 of Senate Joint Resolution 130 would seem to have little application to such agreements. As to executive agreements not submitted to Congress, issues whether such agreements can override State law have, so far as we are aware, seldom arisen and are not usually likely to arise because of the general external use and application of such agreements. In the Belmont and Pink cases, it was held that such agreements incident to recognition of a foreign government could override State policies; however, a like result has been reached as to declaration of Federal

policy incident to recognition or nonrecognition even where no international agreement is involved on the ground that the Federal Executive has the exclusive power to recognize or refuse to recognize foreign governments and to determine the consequences of recognition or nonrecognition. Latvian State Cargo & Passenger S. S. Line v. McGrath (188 F. 2d 1000 (C. A. D. C., 1951), certiorari denied, 342 U. S. 816). There does not seem to be any need whatever for the proposed amendment to the Constitution in this respect.

Section 4 of Senate Joint Resolutions 130 and 122: This section would provide that executive agreements shall not be used in lieu of treaties. Section 2 of Senate Joint Resolution 122 may be intended to have, in part at least, the same effect. The preceding discussion of the historic use of so-called executive agreements demonstrates that there is a wide area of overlap in which either a treaty or an agreement other than a treaty appropriately can be used. The proposed provision affords no guide as to when use of an executive agreement would be appropriate and when it would be regarded as forbidden as in lieu of a treaty. Because of its ambiguity it would invite attacks, judicial and otherwise, on the validity of any agreement not concluded with the formality of a treaty. Moreover, we believe that no hard-and-fast rule could be laid down as to when the use of an executive agreement is or is not appropriate. Certainly the suggestion that all matters requiring secrecy must be dealt with by treaty would not seem to afford a workable or desirable rule.

Senate Joint Resolution 122 would also provide that executive agreements shall be subject to legislative action of Congress in the exercise of its constitutional powers. Most executive agreements are either authorized or ratified by Congress. Moreover, Congress now has power to supersede a treaty insofar as it declares rules of domestic law, and it seems obvious that Congress has like power as to agreements other than treaties. In this aspect, no amendment would seem needed. If, however, the provision is intended to assert legislative control over international action taken by the President in the exercise of his constitutional powers as Commander in Chief, or his powers to conduct foreign affairs (cf. United States v. Belmont, 301 U. S. 324), it would raise the gravest implications for the principles of separation of powers on which our Constitution is based.

The provisions of both resolutions that executive agreements would terminate (unless extended) after the end of the term of the President within whose tenure they were negotiated would impose obvious and crippling impediments to the effective negotiation of and adherence to all sorts of executive agreements, frequently of an administrative character, whose nature presupposes a relatively long term. The effect of such provisions on long-term agreements relating to the administration of military bases, for example, has been pointed out in the memorandum submitted to the subcommittee by the Department of Defense.

Other provisions of the resolutions would likewise appear undesirable or unnecessary. They have, however, been commented upon by other agencies of the Government, and the objections will not be repeated in this memorandum.

CONCLUSION

The times in which we live pose grave threats to our national existence and to the continuance of our way of life. The framers of the Constitution, also acting in time of crisis, recognized that, although governmental power could be a danger to individuals, there was even greater danger in rendering the Government incapable of dealing effectively with problems with which it would be faced. Hence they conferred on the Federal Government powers which they deemed necessary to the adequate conduct of foreign affairs, despite contentions that those powers would endanger rights of States and individuals. Since 1789 we have changed from a seaboard Nation of 13 States and 3,000,000 population to a continental Nation of 48 States and more than 155,000,000 population. We have become a major power-the leading power of the free world. And the

39 There is no magic in the nomenclature used to describe these various kinds of agreements. As set forth in the well-known Research in International Law of the Harvard Law School, Law of Treaties (published as 29 Am. J. Int. Law Supp. No. 4, 710-722). the titles "covenant." "agreement." "act." "arrangement," "protocol," "statutes," "pact," "declaration," are used interchangeably with the terms "treaty" and "convention." Nor is there any fundamental distinction, based upon subject matter, indicating when one or another of these types of instruments is used. See McDougal and Lans, Treaties and Congressional-Executive or Presidential Agreements (54 Yale L. J. 181, 196-197 (1945)).

complexity and tempo of international affairs have increased immeasurably. In such circumstances, if any constitutional amendments to the powers over foreign relations are needed, one would expect that they would be in the direction of increasing the powers of the Government in the international field, and of facilitating the conduct of foreign relations. Certainly the United States ought not now, or ever, be put in a position inferior to other nations in respect of its power and ability to conduct foreign affairs.

The proposals presently advanced, however, would seriously restrict the ability of the United States to conduct foreign relations effectively. They would deny to the United States, in its dealings with other nations, rights of sovereignty which other nations exercise. The proposals would seriously alter the existing balance of Federal-State relations. They would make international agreements of all kinds more difficult to negotiate and enforce. They would, moreover, impose these restrictions not because the Federal powers over foreign relations have in fact been used to impair individual rights within the United States, or even because there is an imminent likelihood that they will be so used. The dangers asserted by proponents of the amendments are based on consequences asserted to flow from agreements, most of which have not yet been approved by the executive branch of the United States and none of which has been ratified by the Senate.

Much has been said by the sponsors and supporters of the proposed amendments of their desire to safeguard the individual rights and liberties of Americans against alteration by treaty "either for better or for worse" (e. g., Senator Bricker, 98 Congressional Record 6810, June 6, 1952). To many, including ourselves, the notion of legal safeguards to prevent the further strengthening of the defenses and enjoyment of our individual rights and liberties is indeed puzzling. On the other hand, the aim to protect against the worsening of individual rights is, of course, laudable if there is such a danger and if its elimination is practical within the means proposed without beinng destructive of other equally essential objectives.

To us it seems that the only case of danger presented by the proponents of the amendments, if it can be called danger, is the possibility that at some indefinite time in the future the Senate may be asked to consider giving its advice and consent to ratification of a treaty or treaties on freedom of information, on How immediate, let human rights, and on an international criminal court. alone real, is this danger may be estimated from the facts that the freedom of information conventions were never fully completed and have already been laid aside by the United Nations, with the United States announcing that it would not support them because of certain objectionable provisions; that the covenants on human rights have been the subject of work in the United Nations since 1947, are still in draft, and are years away from completion; and that the proposal for an international criminal court has been the subject of preliminary study by a United Nations committee that has only recently produced a first draft, dealing with the suggested composition of such a court and not with the essentials regarding jurisdiction, which draft has yet to be commented upon by governments or any of the organs of the United Nations.

We believe that the people of the world are properly concerned with finding It is too means to protect and guarantee human freedoms, and we do not flinch at the obligation of this country to aid and participate in such endeavors. early to argue the merits or demerits of the particular proposals for achieving these goals, which have yet to emerge in definitive form. Such proposals, when definitively made, can either be accepted on the merits by the people of this country acting through the President and Senate, or rejected by them if found But we can see no valid reason to amend the Constitution so as objectionable. to prevent the President and Senate from even considering international solutions to what are regarded by most nations of the world as international problems of gravity and importance.

The premature and vague objections which have been advanced would not justify even apparently innocuous amendments to the Constitution. They certainly do not justify the serious restrictions and impediments to the effective conduct of foreign relations which would result from the present proposals.

For the reasons stated in this memorandum, the Department of Justice opposes all of the proposed amendments to the Constitution.

VETERANS OF FOREIGN WARS OF THE UNITED STATES
National Headquarters: Kansas City, Mo.

Re Senate Joint Resolution 130.

Senator PAT MCCARRAN,

WASHINGTON 5, D. C., May 21, 1952.

Chairman, Senate Committee on the Judiciary,

Washington, D. C.

DEAR MR. CHAIRMAN: As legislative spokesman for the Veterans of Foreign Wars of the United States, I had requested the privilege of a personal appearance before your subcommittee holding hearings on Senate Joint Resolution 130 to present the official position of my organization in support of the measure.

It is my understanding the hearings on Senate Joint Resolution 130 may be of brief duration and that there will be several witnesses from out of town which creates the possibility that I might not be reached for personal testimony. In anticipation of such a possibility, I am taking the liberty of preparing this letter, incorporating the position of the Veterans of Foreign Wars, for insertion in the hearing records to insure that the position of my organization will be known. The official position of the Veterans of Foreign Wars is as follows: "The National Council of Administration of the Veterans of Foreign Wars of the United States, at a meeting in Washington, D. C., on February 6, 1952, adopted a resolution endorsing Senate Joint Resolution 130. The resolution of endorsement does not necessarily endorse the exact wording of Senate Joint Resolution 130. The Veterans of Foreign Wars does not have the facilities at hand to make a sufficiently detailed study of the wording of Senate Joint Resolution 130 to enable us to make such a complete detailed endorsement. We do, however, wholeheartedly endorse, as we understand it, the principles embodied. "We recognize that Senate Joint Resolution 130 involves many complex questions of constitutional law. We believe the able and distinguished lawyers on this committee are much better qualified than this office to pass on the aspects of constitutional law. We should, however, like to point out that the Veterans of Foreign Wars is an organization composed exclusively of men who have defended our nation on foreign soil or in hostile waters in time of war. We are sure you and your committee will recognize that our primary objective at this time is a continuation of our free institutions and the defense of these United States, just as it was the primary purpose of our members in time of war. That is the motivation behind our support of Senate Joint Resolution 130. "We favor international cooperation by our Government through an association of sovereign nations but we are fearful that the rights for which we fought on the battlefield may be lost in the halls of state if our Constitution is not amended as provided by this resolution. The fact that we have fought to preserve these rights make them all the more dear to us. It makes us all the more zealous for their protection.

"In the past, treaties and international law were largely concerned with relations between sovereign states. The recent tendency to expand international treaties and agreements into a broader field where they affect individual rights has created the present question and a new danger to our free institutions and our American way of life. We understand that, with the possible exception of France, the United States is the only nation in the world in which treaties become the domestic law of our land without legislative implementation by the Congress or the several States. This new situation constitutes an invasion of the legislative power of the Congress, as well as the rights of the States, and imposes an undue hardship on our Government in the field of international cooperation.

"It is the understanding of the Veterans of Foreign Wars that Senate Joint Resolution 130 would require implementing legislation by the Congress of the United States before international treaties and agreements could have the force and effect of domestic law affecting the rights of our individual citizens and federated States. On that basis and with that understanding, we unhesitatingly urge prompt approval of Senate Joint Resolution 130 by the Congress for immediate submission to our 48 States."

Thanking you and your committee for the privilege of expressing the opinion and position of the Veterans of Foreign Wars with respect to Senate Joint Resolution 130 and requesting this letter be made a part of the official hearing records, I remain

Respectfully yours,

OMAR B. KETCHUM, Director.

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