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ture, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract—when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract, before it can become a rule for the court."
! Whether a treaty is thus self-executing is not "a matter of judieial guess" (ABA committee report, p. 14); it is a matter primarily of construction of the treaty, which is no more difficult or obscure than any other question of construction of a written document. As Judge Putnam stated in United Shoe Machinery Co. v. Duplessis Shoe Machinery Co. (155 Fed. 842, 845 (C. C. A. 1) (1907)):
"An examination of the decisions of the Supreme Court on this topic will show there is no practical distinction whatever as between a statute and a treaty with regard to its becoming presently effective, without awaiting further legislaion. A statute may be so framed as to make it apparent that it does not become practically, effective until something further is done, either by Congress itself or by some officer or commission intrusted with certain powers with reference thereto. The same may be said with regard to a treaty. Both statutes and treaties become presently effective when their purposes are expressed as presently effective;
Thus under existing law there are at least three means by which participation of the House may be obtained where appropriate: First, the treaty, as drafted by the executive, may, and frequently does provide that it is not selfexecuting. To the extent that its implementation requires appropriations or other domestic legislation it will necessarily depend on legislation passed by both Houses. And in other situations where a treaty might have internal effect it is frequently cast in terms which are not self-executing. See, for example, the Convention for the Protection of Migratory Birds of August 16, 1916 (39 Stat. 1702, art. VIII), legislation implementing which was involved in Missouri v. Holland (252 U. S. 416, 431 ) ; International Slavery Convention of September 25, 1926 (46 Stat. 2185), obligating the parties to take “necessary steps," "adopt all appropriate measures,” “take all necessary measures," etc., to achieve its objectives; articles 55 and 56 of the United Nations Charter, obligating the parties to “promote" certain objectives and to "pledge themselves to take joint and separate action" for the achievement of certain purposes, held non-selfexecuting in Sei Fujii v. State (242 P. 2d 617 (Sup. Ct. Calif.)). Similarly the Genocide Convention was cast in terms intended to make it non-self-executing, and present drafts of proposed conventions relating to human rights and to freedom of information are cast in non-self-executing terms.
Second, the Senate, in the exercise of its power to impose reservations (Harer v. Yaker, 9 Wall, 32, 35; see 98 Congressional Record March 20, 1952, pp. 2602– 2603), may insist as a condition of ratification that the treaty should not be considered as self-executing. Since one more than one-third of the Senate can prevent ratification, this power would seem to afford ample opportunity for any substantial objection to dealing with the matter by self-executing treaty to be felt.**
Finally, in an extreme case, there is available as a check on the President and Senate the undoubted power of Congress, by subsequent statute, to override the treaty so far as its effect on domestic law is concerned.
In general these safeguards appear to have worked satisfactorily. Perhaps the most conspicuous instance of dissatisfaction with their working arose in connection with the Jay Treaty of 1794; but while the issue of the House's participation in commercial treaties was debated at length and with heat, and
36 In view of the attention which has been given this case, it should be noted that the possible application of the United Nations Charter, on which the intermediate court relied, was not necessary to the decision, in view of the holding by the Supreme Court of California that the California alien land law violated the fourteenth amendment.
37 Another illustration of the ways in which the influence of the House may be felt is suggested by the Brussels Convention of 1924. Ratification was advised and consented to by the Senate on April 1, 1935. Thereafter, certain interested groups requested that ratification be withheld pending consideration of legislation covering the subject matter of the convention. This was done ; Congress on April 16, 1936, enacted the Carriage of Goods by Sea Act' (49 Stat: 1207), which followed the convention almost verbatim, with certain changes to insure preservation of existing American law and to extend appli: cation of the convention to certain cases not clearly covered by it. Thereafter, on June 25, 1937, ratification of the convention was deposited, with the understanding that in cases of conflict the statute would prevall, and the convention was proclaimed to be in effect (51 Stat. 233). See S. Rept. No. 742, 74th Cong., 1st sess., p. 4; H. Rept. No. 2218, 74th Cong., 2d sess., pp. 4-7.
a constitutional amendment was proposed by the Virginia Legislature, no action
To impose a rigid requirement that no treaty can have domestic effect as law unless it goes through the second step of approval by both Houses of Congress would have seriously damaging consequences in those areas in which treaties have traditionally been self-executing. For example, treaties of commerce and friendship typically provide for the rights of aliens to hold, acquire, inherit, and dispose of property, to engage in businesses and professions, to be protected in their persons and property, to be free from burdensome taxation, etc. Such treaties are almost invariably self-executing. Since the beginning of the Republic they have, when ratified by the Senate, become domestic law which, in case of conflict, overrides inconsistent State law. The American Bar Association proposal would clearly require that all such treaties, to be effective, be submitted to both Houses of Congress." Section 3 of Senate Joint Resolution 130 would have the same effect, for since no one could predict with assurance whether some provision of such a treaty might not be inconsistent with a statute, municipal ordnance, or other regulation of 1 of the 48 States, the only safe course would be to assume possible conflict and submit the treaty immediately to Congress.
No reason has been suggested why the efforts of the United States to secure adequate protection for the persons and property of its citizens abroad, whether transients or residents, should be impeded by making the process of adopting such treaties more burdensome and time consuming than it now is. No substantial objections have been suggested to the practice of over 150 years in respect of treaties of friendship and commerce and other types of treaties which have traditionally been self-executing. No reason has been advanced for requiring that all such treaties should now be submitted to and take up the time of the House, which has never before been called on to deal with them.
Accordingly, we oppose both of the proposed limitations on the self-executing force of treaties. C. Proposals relating to executive agreements
Section 4 of Senate Joint Resolution 130 contains a number of proposals relating to executive agreements. In addition, it has been indicated that the provisions of Senate Joint Resolution 122, also relating to executive agreements, will be considered as a possible alternative to section 4.
It is well-settled that in the exercise of his powers to conduct foreign affairs (Constitution, art. II, sec. 2) the President may enter into agreements other than treaties with foreign nations. The fact that there could be international agreements other than treaties was recognized in the Constitution itself, which, in article I, section 10, provides that no State shall enter into “any Treaty, Alliance, or Confederation,” nor, without the consent of Congress, enter into any “Agreement or Compact
with a foreign Power.” It was recognized by the Congress during Washington's first administration. In establishing the post office, Congress authorized the Postmaster General to make arrangements with the postmaster in any foreign country for the reciprocal receipt and delivery of mail (1 Stat. 232, 239). Pursuant to authority conferred by this and later statutes postal carriage arrangements with Canada and postal conventions with many countries of the world were consummated. Almost 100 years after the first postal act Solicitor General William Howard Taft ruled :
"From the foundation of the Government to the present day, then, the Constitution has been interpreted to mean that the power vested in the President to make treaties, with the concurrence of two-thirds of the Senate, does not exclude the right of Congress to vest in the Postmaster General power to conclude conventions with foreign governments for the cheaper, safer, and more convenient carriage of foreign mails" (19 Op. A. G. 513, 520 (1890)).
The frequency with which such agreements have been used is indicated by the fact that of the nearly 2,000 written international agreements entered into by the United States in the 150 years between 1789 and 1939, only some 800 were made by the formal treaty process (letter of April 25, 1947, from Acting Attorney General McGregor to Senator Wallace H. White, Jr., chairman of the Senate Interstate and Foreign Relations Committee, regarding S. 11, 80th Cong.).
38 Indeed, the further requirement that Congress can enact only such legislation as would be within its delegated legislative powers would probably put such treaties beyond the power of Congress to make effective. The Federal Government's power in this vital area would be limited to requesting States to take action,
The Supreme Court has repeatedly recognized as well-established "the power to make such international agreements as do not constitute treaties in the constitutional sense' (United States v. Curtiss-Wright Corp., 299 U. S. 304, 318 (1936); Altman & Co. v. United States, 224 U. S. 583 (1912) (commercial agreement authorized by the tariff acts); United States v. Belmont, 301 U. S. 324 (Litvinov assignment); United States v. Pink, 315 U. S. 203 (same)). As the Supreme Court said in United States v. Belmont, supra, in connection with an executive agreement, not submitted to Congress, assigning to the United States certain claims of the Russian Government
“A treaty signities 'a compact made between two or more independent nations with a view of the public welfare (Altman & Co. v. United States, 224 U. S. 583, 600). But an international compact, as this was, is not always a treaty which requires the participation of the Senate. There are many such compacts, of which a protocol, a modus vivendi, a postal convention, and agreements like that now under consideration are illustrations. (See 5 Moore, Int. Law Digest, 210–221.) The distinction was pointed out by this court in the Altman case, supra, which arose under section 3 of the Tariff Act of 1897, authorizing the President to conclude commercial agreements with foreign countries in certain specified matters. We held that although this might not be a treaty requiring ratification by the Senate, it was a compact negotiated and proclaimed under the authority of the President, and as such was a treaty within the meaning of the Circuit Court of Appeals Act, the construction of which might be reviewed upon direct appeal to this court (301 U. S. at 330-331)."
The important fact is that under the broad grants of power in the Constitution to the Congress and to the President, procedures alternative to treaty making have developed and have been utilized throughout our history for entering into international agreements on important subject matters with more or less the same legal and practical consequences. Care must therefore be exercised, in any consideration of altering the full foreign affairs power, not to slough off, inadvertently or otherwise, functions, practices, and methods of operation that have developed usefully and to our advantage, and without which our facility in dealing with other nations would be hampered and restricted. As John Bassett Moore said almost 50 years ago :
“The conclusion of agreements between governments, with more or less formality, is in reality a matter of constant practice, without which current diplomatic business could not be carried on. A question arises as to the rights of an individual, the treatment of a vessel, a matter of ceremonial, or any of the thousand and one things that daily occupy the attention of foreign offices without attracting public notice; the governments directly concerned exchange views and reach a conclusion by which the difference is disposed of. They have entered into an international ‘agreement'; and to assert that the Secretary of State of the United States, when he has engaged in routine transactions of this kind, as he has constantly done since the foundation of the government, has violated the Constitution because he did not make a treaty, would be to invite ridicule. Without the exercise of such power it would be impossible to conduct the business of his office" (20 Political Science Quarterly 385, 389-390).
But there is much more. In addition to agreements made in the transaction of current business, the executive has lawfully and advantageously entered into international agreements of a more formal i not more important kind without resorting to the formal treaty-making process. Mr. Moore continues:
“The agreement of 1817, for the limitation of naval armaments on the Great Lakes, was made and carried into effect by the executive, though it was afterwards submitted to the Senate. By a protocol signed at London, December 9, 1850, by Abbott Lawrence, American minister, on the part of the United States, and by Viscount Palmerston, on the part of Great Britain, it was agreed that the British crown should cede to the United States Horseshoe Reef in Lake Erie, and that the United States should accept it, on the conditions of erecting a lighthouse there and maintaining no fortifications. On receipt of the protocol, Mr. Webster, as secretary of state, on January 7, 1851, instructed Mr. Lawrence to acquaint the British government that the arrangement was 'approved by the government of the United States. This Mr. Lawrence did on the 17th of the succeeding month. Congress made appropriations for the erection of the lighthouse, which was built in 1856. The validity of the title thus gained will hardly be disputed. The cession, which the executive had arranged, having been adopted by Congress, the territory came completely within the jurisdiction and control of the United States without any “treaty.” We hold the Hawaiian Islands by no better tenure. Two successive attempts to annex them by treaty 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 admit. ted 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 provi. sions 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 Cübr 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 l'orto Rico and other Spanish islands in the West Indies, which was clearly an incident of the cession.
"Another remarkable exercise by the presiilent 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 430,000,000 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