for all of the reasons which have been mentioned and for one more which I am going to mention. Let us go back to the Fugii case and articles 55 and 56 of the United Nations Charter. The district court in its opinion there decided that the alien land laws were

in conflict with the plain terms of the Charter and with the purposes announced therein by its framers.

And they said that the discrimination against Mr. Fugii owning land

was

contrary both to the letter and to the spirit of the Charter, which as a treaty is paramount to every law of every state in conflict with it.

As I read the decision of that court, they held articles 55 and 56 of the Charter to be self-executing, but as I read the opinion of the supreme court rendered in April, they are prepared to disregard articles 55 and 56 and they base their decision on the fourteenth amendment.

Senator HENDRICKSON. Are you referring to the California Supreme Court?

Mr. HATCH. Yes, sir; indeed, I am.

Now, in one of the articles I have seen on this subject it is said:

The opinions should remove any doubt as to the non-self-executing character of the United Nations Charter provisions there involved.

With the greatest deference to the people who wrote that, I suspect it is going to be the gentlemen in this city sitting as he Supreme Court of the United States who are going to have the final word on that subject, but, in any event, articles 55 and 56 of the United Nations Charter have been a treaty in this country since 1945, 7 years ago, and the courts are still debating whether certain provisions of them are or are not the supreme law of this land, binding on you, me, and binding on every individual. Any such uncertainty as to what law governs us is simply intolerable. The people are suppposed to know the law. Indeed, I think the old maxim about ignorance of the law being no excuse could certainly be trotted out on that, because how are you going to know? Therefore the amendment would have this distinct additional advantage: We would all know, as Mr. Rix mentioned, when the impact of these things struck.

As to point 3 of our amendment, I want to just illustrate what it is that I think we have to beware of and what that is intended to stop by a quotation, and I am cutting this as short, Mr. Chairman, as I can. Mr. Moses Moskowitz, who is an advocate of the Covenant on Human Rights, said in the American Bar Association Journal of April 1949, on page 359:

Nor should the terming of the project as "revolutionary" cause deep concern. The idea of "supranational supervision" of the relationship of a state to its own citizens, which is the real crux of the matter, revolutionary as it may appear, is not without precedent.

He goes on to mention the attempts to protect minorities under the treaties like the Locarno pact following the League of Nations and then he said this at page 285:

Now, as to the argument that relations between governments and their citizens is a matter which is excluded from the intervention of the United Nations, it is of a purely legalistic character and excludes all considerations of political ethics. In the first place, the Charter does not define what matters are "essentially within the domestic jurisdiction of any state." It is a matter of interpretation. Per

haps the "correct position would be that once a matter has become, in one way or another, the subject of regulation by the United Nations, be it by resolution of the General Assembly or by convention between member states at the instance of the United Nations, that subject ceases to be a matter being essentially within the domestic jurisdiction of the member states."

There is more. It goes on to say:

As a matter of fact, such a position represents the official view of the United Nations, as well as of the member states that have voted in favor of the Universal Declaration of Human Rights. Hence, neither the declaration, nor the projected covenant, nor any agreement that may be reached in the future on the machinery of implementation of human rights, can in any way be considered as violative of the letter or spirit of article 2 of the Charter.

Senator Bricker, I think, has called this matter a loophole. I think it is and I think it is also a pit and if we fall into it while gazing at the stars we have no one to blame but ourselves.

It is said that that instrument has served well for 150 years and should not be tampered with in this regard. I say that had not those who oppose amendment along the lines suggested with their host of like thinkers fostered and developed a revolutionary change in the concepts and functions of treaties, treaty law, and delegation of domestic matters to international organizations, there would be no need to change the Constitution. They are the mainsprings of the necessity of amend

ment.

As to the executive agreements, our amendment did not deal with that.

May I go on for just a moment?

Senator O'CONOR. Yes, sir.

Mr. HATCH. I reached one tentative conclusion and that is that what executive agreements need as much as anything else is to be saved from their friends. The executive agreement has been used for many, many years, as I understand it, and executive agreements apparently are very useful instruments when used properly, and what is proper depends on one's own view, of course.

The extent to which the scale between the executive agreements and treaties has shifted is mighty interesting. Mr. Borchard's article in 54 Yale Law Journal gives you an account year by year, and Mr. McClure in his book does, too. Mr. McClure points out that during the first 50 years of government under the Constitution the President is known to have entered into some 27 international acts without invoking the consent of the Senate, while 60 became law as treaties. In the second half-century there were 238 Executive agreements and 215 treaties. Now it has gone the other way, and for the third similar period there were 917 Executive agreements and only 524 treaties, so you can see exactly what has happened.

However, getting back to that question of protecting these Executive agreements from their friends, Mr. McClure says, and he has been quoted earlier in this hearing:

The result is that for controversial international acts the Senate method may well be quietly abandoned, and the instruments handled as Executive. agreements. But for large numbers of purely routine acts, about which no public opinion exists and no question as to their acceptability arises, the present method is desirable as saving the time of the House of Representatives without increasing the present burdens of the Senate.

I do not see quite how that could have been written without an eye to history. I should say with an eye to past history. However, he

is one of the greatest friends of the Executive agreement. He is the gentleman who says they are interchangeable and the old Senate method can be abandoned, but he apparently preaches a dogma that is just a little too strong for some of the other friends of the Executive agreement, namely, Messrs. McDougal and Lans, who state in 54 Yale Law Journal, page 246:

It has been suggested by distinguished scholars that this power of the President is "plenary," and "that he can make international agreements on any subject whatever, limited only by the qualification that he ought not to engage the good faith of the United States to something which may not be carried out." It is not necessary, however, in order to make it clear that the United States possesses a completely adequate procedure, independent of the treaty-making procedure and more responsive to democratic control and to the national interest, for making important international agreements, to come to a conclusion on this point. What is completely certain is that the powers of the Congress can be superadded to those of the President, and that the two sets of powers taken together are plenary.

I judge from that that the McClure statement goes much too far. The McDougal and Lans article points out that early in the nineteenth century Attornel General Wirt interpreted this clause in the Constitution, which charges the President to take care that the laws are faithfully executed, as referring not only to the Constitution, statutes, and treaties, but also to all

those general laws of nations which govern the intercourse between the United States and foreign nations.

I ask if the President has the constitutional authority to take care insofar as the self-executing provisions are concerned of a ratified treaty, which is still a valid subsisting international agreement, if he has the power under his constitutional grant to do that, how far does the power exist to implement these provisions of the United Nations Charter, articles 55 and 56, as they have been referred to by earlier speakers?

It is a real point. I bring that up for this reason: I say that executive agreements not only need definition; they need, in my humble opinion, legislative control wherever it is deemed necessary, but I say that if their friends encourage such extreme doctrine as that, it may result in the striking down of executive agreements, and I do not think that anyone thinks that should be done in its entirety.

That, I may say, is all that I have to offer.

Senator O'CONOR. We are indebted to you, sir. I note that it is now just about 2 minutes of 1. It may be a little late to ask our next friend to speak, unless there is some particular reason. I think it may probably be better for all concerned to recess now until 2 o'clock. Is that satisfactory to your, Senator Hendrickson?

Senator HENDRICKSON. Yes.

Senator O'CONOR. We will recess, then, until 2 o'clock.

(Whereupon, at 1 p. m., the hearing recessed to reconvene at 2 p. m. of the same day.)

AFTER RECESS

(The subcommittee reconvened at 2 p. m., upon the expiration of the recess.)

Senator O'CONOR. The hearing will please come to order.

As was arranged just at the time of the recess period, we were favored to have Mr. Frank Ober present himself. Mr. Ober, will you

kindly come forward? We would like, first of all, if you would identify yourself for the record by name and address, please.

STATEMENT OF FRANK B. OBER, ATTORNEY AT LAW, BALTIMORE, MD., MEMBER OF THE COMMITTEE ON PEACE AND LAW THROUGH THE UNITED NATIONS, OF THE AMERICAN BAR ASSOCIATION

Mr. OBER. My name is Frank B. Ober, Mathison Building, Baltimore, Md.

Senator O'CONOR. Mr. Ober, while you are very favorably known to the committee, we would like to have, for the record, your identity and your general connections made known, if you will, please. What connections have you had?

Mr. OBER. I am now a member of the committee on peace and law through the United Nations of the American Bar Association. I first became interested in this in 1950 when I made my presidential address at the Maryland Bar Association which is published in the September 1950 issue of the American Bar Journal.

At that time I proposed a constitutional amendment, but the present amendment is quite different in form.

I wanted to take only a few minutes. I have no written or prepared address, and I wanted to address myself to only one or two things that have not been covered before. The first is a point as to the necessity of deliberate action in an amendment, and a comparison between the amending power process and the treaty power process. I do that for the reason that the critics of the committee's proposal and of Senator Bricker's proposal say that the Senate is a sufficient guardian of American rights without any constitutional amendment.

As Senator Bricker opened the proceeding, he said that there was a great constitutional issue at stake, and that constitutional issue, as I see it, is: How will the organic law of the land be changed? What is the best method and which method best reflects the wishes of the people themselves?

That requires me to say in just a few words the difference between the two methods.

After the Declaration of Independence in which our forefathers pledged their lives and their sacred honor and fortunes, they said: We, the people, do ordain this Constitution of the United States.

That said "We, the people." That Constitution was adopted, as we all know, by a Congress, calling a Federal convention, the Federal convention meeting in turn for 512 months, and the Federal convention reported to the Congress, the Congress to the legislatures, and the legislatures to the ratifying conventions, and after a debate, which has been characterized as the greatest political debate in the history of this country, it was enacted, and it was the deliberate act of the people themselves.

Now, within the Constitution is an amending power, and that power, likewise, to change this organic law so deliberately adopted, required deliberate action insofar as it could be obtained, by the people themselves, because it required, of course, as you know, two-thirds of the Houses of Congress, or Federal convention called by two-thirds of the legislatures, and in either case ratified by the legislatures or by State conventions, as the Congress may determine.

22984-52-5

Now, I bring that up, Mr. Chairman, to compare it with this new method. What is the new method? What is the origin of this treaty method? Who originates these treaties? Is it the Congress of the United States consisting of all the representatives from various parts of the country, former governors, attorneys general, people learned in American law?

No. The originating body is a group of 60 nations, in which we have only a minor part.

Next, there is a ratification by the Senate. It is true, and that is the point that the critics harp on so much. It is no disrespect to the Senate, and I certainly respect the Senate as much as any man here, to point out that in such things as the admission of Greece and Turkey to the North Atlantic Treaty, there were only six Senators on the floor.

I am not in any manner criticizing; it is almost impossible to be everywhere at the same time.

Senator FERGUSON. Of course, there were six Senators at one time voting for that, and that was reconsidered and a roll-call vote taken. Mr. OBER. Yes.

Senator FERGUSON. And there was a majority of the Senate. I think the record ought to show that.

As to the six Senators, that can happen on the floor while we are conducting hearings in here. Someone is apt to bring up a matter in there, and they would have a voice vote.

I have seen something pass with one "aye" and no "noes." That was not a treaty, but another matter. Then, of course, you always have the power of reconsideration, and that was done. I think the record ought to show that.

Mr. OBER. That is true, and please do not misunderstand me; I am not criticizing the Senate procedure. I am talking about general procedure.

Senator FERGUSON. I understand. I share your view of the alarm as to the few men on the floor.

Mr. OBER. Then, of course, the fact that sixty Senators saw the need of something to be done about this process is convincing that the critics of the amendment do not have their views shared by that of the Senate to the effect that the Senate itself alone is a sufficient guardian.

Let me come to the next point.

Senator FERGUSON. May I ask you this: Is there an admission on the part of the opponents to this resolution that the Constitution of the United States can, in effect, and I underscore "in effect," be amended by treaty?

Mr. OBER. I think that is implicit in substantially all of their argument. It certainly is with respect to Missouri versus Holland.

Now, of course, they will argue, Senator, and let me come to that particularly, that there is no change in the Constitution in such things, I assume they will argue on the international police court. Take that as an example. There is a case where there is to be an abolition of the trial by jury and transporting of the people beyond the seas for trial, which were two of the reasons cited in the Declaration of Independence for severing our relations with Great Britain.