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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 8. 8. 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 consti. tutional 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 Consti. tution 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.
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 Gov. ernment 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 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.
39 There is no magic in the nomenclature used to describe these various kinds of agree. ments. 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 Con. gressional-Executive or Presidential Agreements (54 Yale L. J. 181, 196-197 (1945)).
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 human rights, and on an international criminal court. How immediate, let 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 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. It is too 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 objectionable. But we can see no valid reason to amend the Constitution so as 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.
WASHINGTON 5, D. C., May 21, 1952. Re Senate Joint Resolution 130. Senator Par MOCARRAN, 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 legisiation 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.
AMERICAN ASSOCIATION OF UNIVERSITY WOMEN,
Washington, D. C., May 22, 1952.
Washington, D. C.
The association has been authorized by its international-relations committee to issue this statement opposing Senate Joint Resolution 130 in its belief that adoption of this resolution would destroy our constitutional system for the negotiation of treaties.
We desire, therefore, to make known to your committee and urge its serious consideration of the position taken by the American Association of University Women in opposition to Senate Joint Resolution 130 with this statement to you. Yours very truly,
(Signed) Anne G. Pannell,
(Typed) Dr. ANNE G. PANNELL, Chairman, International Relations Committee.
STATEMENT PRESENTED BY THE AMERICAN ASSOCIATION OF UNIVERSITY WOMEN
OPPOBING SENATE JOINT RESOLUTION 130
In behalf of the American Association of University Women, I am writing as chairman of the association's international-relations committee to oppose the adoption of Senate Joint Resolution 130, which proposes an amendment to the Constitution of the United States relative to the making of treaties and executive agreements.
The American Association of University Women, founded in 1882, has a membership of approximately 120,000 women college graduates organized in every State of the United States through 1,206 local branches.
The national biennial convention of the American Association of University Women in April 1951 voted to support "A constructive foreign policy which would endeavor to develop conditions favorable to democracy and economic well-being throughout the world as prerequisites for national and international peace and security.” We believe that the United States could not continue to develop a constructive foreign policy under the changes proposed by Senate Joint Resolution 130.
The international-relations committee of the American Association of University Women has considered the amendment to the Constitution of the United States proposed by Senate Joint Resolution 130. The committee reaffirms its faith in the wisdom and effectiveness of the separation of powers, and of the distribution of powers between the States and the National Government laid down in the Constitution of the United States.
The committee opposes Senate Joint Resolution 130 on the ground that this proposed constitutional amendment (1) would nullify the separation of powers established by the Constitution; (2) would divest the Executive of authority to negotiate treaties (which, it should be noted, do not become effective until concurred in by two-thirds of the Senate); and (3) such an amendment is superfluous in the light of existing congressional powers over foreign policy through the power of concurrence in the ratification of treaties, the enactment of appropriations, and the consideration of legislation necessary to implement treaties.
The proposed amendment is structurally defective in that it confuses and commingles treaties and executive agreements. Treaties, when ratified—and only when ratified by the Senate become under the Constitution (art. VI) the "supreme law of the land.” Executive agreements have no such standing, and generally relate to relatively minor administrative matters. If they relate to more important matters, the Congress controls their execution through implementing legislation and appropriations.
The provision in the Constitution recognizing treaties when ratified as the "supreme law of the land” is one of the historic steps taken by the Constitutional Convention which made the United States a great and stable Nation faithful to its obligations. There is no necessity for destroying the constitutional system for the negotiation of treaties.
Dr. ANNE G. PANNELL, Chairman, International Relations Committee.
YALE UNIVERSITY LAW SCHOOL,
New Haven, Conn., May 28, 1952. Hon. PATRICK A. McCARRAN. Chairman, Senate Judiciary Committee,
Washington, D. C. DEAR SENATOR MCCARRAN: I should be grateful if you could list me, in the hearings of your subcommittee, among those who have expressed opposition to the Bricker resolution to limit our national foreign affairs power.
Enclosed is an outlined statement of a talk I gave recently to the International Law Association in New York City. This statement puts the whole problem in, I believe, a somewhat broader context than is customary. I would appreciate your including this statement, if possible, in the printed hearings of your subcommittee. Sincerely yours,
MYRES S. McDOUGAL, William K. Toron send Professor of Law.
THE CONTEMPORARY PROPOSALS TO LIMIT THE FOREIGN AFFAIRS POWER OF THE
(Outline of talk by Myres S. McDougal, William K. Townsend professor of law,
Yale Law School, to International Law Association, New York City, May 9, 1952)
The proposals embodied in the Bricker resolution and the Peace Through Law Committee reports constitute a grave threat to the security and other vital interests of the United States. For realistic appraisal of these proposals we need to consider
I. The kind of foreign affairs power the United States needs in the contemporary world.
II. The kind of foreign affairs power we now have in the United States.
III. The conditions that produced the present structure of control over foreign affairs and the significance of such conditions for our contemporary national interests.
IV. The current criticisms of our foreign affairs powers and the assumptions upon which these criticisms are based.
V. The validity of the current criticisms when assessed against our contemporary need. Let us proceed to these inquiries seriatim. 1. The kind of foreign affairs power we need
The clarification of this basic preliminary to rational appraisal requires consideration of the world context in which we live, the problems we face in that world, and appropriate criteria for a foreign affairs power to cope with such problems.
(a) The world we live in.—Today we are engaged in a struggle for survival against a foe dedicated to a philosophy of world domination. We live in a world of accelerating bipolarization, of imminent expectations of violence, and of increasing militarization, governmentalization, regimentation, and despotization.
In this world we are interdependent with all other peoples aspiring to be free for the most elemental security, and a fortiori for all the other values we cherish. The most intensive cooperation of all free peoples will be required to preserve security and other democratic values. Decisions are now being made, and must continue to be made, by officials in many nation-states whose effects transcend any single nation-state and in fact comprehend the whole free world. Policies are daily being formulated beyond our boundaries which vitally affect our every value. No nation in the world today has freedom of decision in fact. The one realistic question is how effectively we can participate in, and assume leadership in-not how successfully we can hide ourselves from—the decisions which shape our future.
(b) The problems we face.-The problems in international cooperation that confront us in this world context embrace our every value: security, in the simplest sense of defense: the maintenance of standards of living, the production and exchange of goods and services; the promotion of enlightenment, the preservation of the flow of information by which rational decisions can be made; the promotion of civil liberties and human rights, the preservation of the loyaltycompelling vision of what a free society can be like in contrast to the totalitarian;