15

including the concurring votes of the five permanent members, the failure of the Soviet Union to vote affirmatively on the resolutions of June 25, June 27, and July 7, 1950, may have amounted to a “veto.' The failure of the Soviet delegate to vote on the resolution of June 25, 1950, has also been referred to as "another attempt at veto by walkout." "6 In reply to these objections, the United States Department of State maintained that by a series of precedents the practice had been established whereby abstention by permanent members of the Council was not regarded as a veto." Since the Soviet delegate did not abstain from voting but was absent with the declared purpose that no decision of the Security Council made during this absence must be considered as legally valid, the Department of State found it correct to declare that "the voluntary absence of a permanent member from the Security Council is clearly analogous to abstention." This analogy has been rejected as legally untenable.1 Moreover, it is the contention of the Communist bloc in the United Nations that the continued absence of the Soviet delegate from the Security Council since January 10, 1950, was forced upon this permanent member by the presence in the Security Council of a Chinese delegate who, in the view of the Communist bloc, no longer represented the "Republic of China" as provided for in article 23 of the Charter. In any event neither the resolution of June 25, 1950, nor the resolution of June 27, 1950, had the required concurring vote of all of the permanent members of the Security Council.

Article 43 of the Charter of the United Nations defines the duty of members with respect to contributions of military and other assistance for maintenance of international peace and security. In this article members undertake to make available to the Security Council, on its call and in accordance with special agreements, armed forces, assistance, and facilities, including rights of passage necessary for the purposes of maintaining international peace and security. It was provided that agreements for such contributions shall govern the number and type of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided. Subsection 3 of article 43 then states:

"The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council and groups of members and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes."

To date, article 43 has not been implemented. Not a single special agreement for furnishing to the Security Council armed forces and other assistance for the purpose of maintaining international peace and security has ever been negotiated. None of the forces fighting in Korea under the flag of the United Nations are there pursuant to the special agreements referred to and required by article 43 of the Charter as preliminary to the furnishing of such forces." Pending the coming into force of special agreements referred to in article 43, the Charter of the United Nations (art. 106) stipulates that the parties--China, Soviet Russia, United Kingdom, United States-to the Moscow Declaration of October 30, 1943, and France shall "consult with one another *** with a view to such joint action on behalf of the Organization as may be necessary for the purpose of maintaining international peace and security."

15 Speech by United States Senator Robert A. Taft, July 28, 1950: "Article 27 provides that decisions of the Security Council on all matters shall be made by an affirmative vote of seven members, including the concurring votes of the permanent members. The word 'veto' was never used in the United Nations Charter. It simply provides that there must be the concurring votes of the five permanent members. In this case Soviet Russia has

not voted. They never even appeared at the meeting. It is suggested, I understand, that gradually the procedure has resulted that a veto must be expressed by a negative vote even though it seems directly contrary to the language of article 27. (96 Congressional Record 9323 [1950]).

16 Editorial, War in Korea, New York Times, June 26, 1950, 17 Department of State, press release No. 702, June 30, 1950.

18 Korean Crisis, op. cit., p. 63.

19 See for instance Schick, op. cit., pp. 319 ff.

20 In the course of debate on the Security Council resolution of July 7, 1950, the representative of the United Kingdom to the United Nations, Sir Gladwin Jebb, stated in part as follows: "*** Had the Charter come fully into force and had the agreement provided for in article 43 of the Charter been concluded, we should, of course, have proceeded differently, and the action to be taken by the Security Council to repel the armed attack would no doubt have been founded on article 42. As it is, however, we can naturally only act under article 39, which enables the Security Council to recommend what measures should be taken to restore international peace and security. The necessary recommendations were duly made in the resolution of June 25 and 27, but in the nature of things they could only be recommendations to individual members of the United Nations. (U. N. doc. S/PV/476).

One may consider as legally incorrect the repeated statements of present administration spokesmen that American troops in Korea are part of a United Nations army. In view of the mandatory provisions of article 106 of the United Nations Charter, it is even legally hazardous, though perhaps politically quite convenient, to accept the version that Americans are in Korea on behalf of the United Nations, since joint action under article 106 of the United Nations Charter presupposes agreement on such action between the Governments of China, France, the United Kingdom, the United States, and Soviet Russia. Lacking such agreement, it is difficult to support the administration's "War by Executive Order" on the basis of existing international law.

When the United Nations Charter was before the Congress in 1945, the thought was expressed that membership might be construed as an advance authorization for the use of American armed forces in warlike activities for the preservation of international peace and security. It was feared that congressional approval of the Charter might involve a surrender by Congress of its control over the Armed Forces of the United States and thus could result in the commitment of American troops to war without a declaration of war by Congress. In an attempt to allay these apprehensions, Mr. John Foster Dulles, of New York, who had been one of the advisers of the United States delegation at the San Francisco Conference, informed the Senate Foreign Relations Committee:

"Under our Constitution, the President, and the President alone, directs the current conduct of foreign affairs. But there can be no declaration of war except by the Congress. That is our internal procedure; it will remain our intertial procedure; and all the world knows that fact.

"It may or it may not hereafter become useful to decide by legislation whether or not the use of our military contingent to ---- contingent. After the Organization is---- of war. But surely we can better determine that when we know what it is that we are talking about. Today there is no military contingent After the Organization is established the Organization may negotiate with the members for military contingents. That agreement for military contingents, so far as the United States is concerned, will be subject to the ratification and consent of the Senate." "1

At the conclusion of his remarks, Mr. Dulles was questioned by several mem bers of the Senate Foreign Relations Committee. The Senator from Colorado [Mr. Millikin] and Mr. Dulles engaged in the following colloquy:

"If I understood you correctly, Mr. Dulles. I thought you said that the Senate will have an opportunity to ratify the special agreement having to do with our contribution of force and material.

"Mr. DULLES. Yes, sir.

"Senator MILLIKIN. Is that your opinion?

"Mr. DULLES. That is not only my opinion but it is expressly stated in the Charter that the agreements are subject to ratification by the states in accordance with their constitutional processes.

"Senator MILLIKIN. Then it is your opinion that to comply with our constitutional processes that separate agreement would have to come to the Senate for ratification?

"Mr. DULLES. It is, and that was the view of the American delegation I think there is no doubt whatever about that.

"Senator MILLIKIN. Is there any doubt about that, Mr. Dulles?

"Mr. DULLES, No.

"Senator MILLIKIN. And no disagreement of opinion on that? "Mr. DULLES. No."

Later in the questioning Mr. Dulles stated:

"It is clearly my view-and it was the view of the entire United States dele gation that the agreement which will provide for the United States military Contingent will have to be negotiated and then submitted to the Senate for ratification in the same way as the treaty."

On July 28, 1945, the last day of the debate about the Charter of the U-red Nations on the floor of the United States Senate, the following letter from the President of the United States, then in attendance at the Potsdam Conference was read to the Senate:

"During the debate in the Senate upon the matter of the Senate's giving 178 advice and consent to the Charter of the United Nations, the question arose as to the method to be followed in obtaining approval of the special agreeile"

S Senate hearings before the Committee on Foreign Relations, 79th Cong. – 1st sess

( S. Government Printing Office, Washington, 1945).

with the Security Council referred to in article 43 of the Charter. It was stated by many Senators that this might be done in the United States either by treaty or by approval of a majority of both Houses of Congress. It was also stated that the initiative in this matter rested with the President, and that it was most important to know before action was taken on the Charter which course was to be pursued.

"When any such agreement or agreements are negotiated, it will be my purpose to ask the Congress by appropriate legislation to approve them."

The United Nations Charter became operative on October 24, 1945. No additional legislation was required to make its self-executing provisions the supreme law of the land." The enactment of the United Nations Participation Act of 1945 gave effect to the non-self-executing provisions of the Charter.23 Section 6 of that act provides as follows:

"The President is authorized to negotiate a special agreement or agreements with the Security Council which shall be subject to the approval of the Congress by appropriate act or joint resolution, providing for the numbers and types of Armed Forces, their degree of readiness and general location, and the nature of facilities and assistance, including rights of passage, to be made available to the Security Council on its call for the purpose of maintaining international peace and security in accordance with article 43 of said Charter. The President shall not be deemed to require the authorization of the Congress to make available to the Security Council on its call in order to take action under article 42 of said Charter and pursuant to such special agreement or agreements the Armed Forces, facilities, or assistance provided for therein:

"Provided, That nothing herein contained shall be construed as an authorization to the President by the Congress to make available to the Security Council for such purpose armed forces, facilities, or assistance in addition to the forces, facilities, and assistance provided for in such special agreement or agreements." The Senate Foreign Relations Committee's report" which accompanied the United Nations Participation Act when it was brought before the Senate in November 1945, contained the following statement in respect to the question of congressional approval to troop commitments to the planned United Nations Security Force:

"The committee believes that it is desirable to determine the question once and for all, and that it is appropriate to specify that the military agreement or agreements should be submitted for approval to the Congress."

Even the most casual reading of section 6 of the United Nations Participation Act indicates that agreements between the Government of the United States and the Security Council for contributions of the United States Forces to the United Nations shall be subject to congressional approval. It will be noted, too, that section 6 authorizes the President to make available to the Security Council "on its call" only such Armed Forces and services as are provided for in such congressionally approved agreements. Then, by the proviso to section 6, the Congress specifically denies the President authority to furnish Armed Forces and services over and above those specifically provided for and specifically authorized by Congress in the agreements which it has approved.

The record is clear. Article 43 of the United Nations Charter requires that commitments of Armed Forces by the United States to the United Nations be made in pursuance of specific agreements between the Security Council and the United States. The laws of the United States require that such agreements not be entered into by the Government of the United States without the approval of the Congress of the United States; and the President of the United States pledged his solemn word that such agreements would be submitted to the Congress for its approval. To date no such agreement has been negotiated between the Security Council and the Government of the United States. Yet the President of the United States has ordered the Armed Forces of the United States into a conflict in Korea which is ostensibly being fought under the aegis of the United Nations, Neither has the President sought, nor does he appear to intend to seek, congressional approval of his action. Thus the United States is at war by order of the President.

However, there can be no retreat from reality. As the Korean conflict passes into its second year, there can no longer be any doubt that the United States is

22 Hackworth, 5 Digest of International Law 177 ff.; see also p. 191 and citations therein. 23 Public Law 264, 79th Cong., 1st sess. (59 Stat. 619), as amended by Public Law 341, 81st Cong., 1st sess. (63 Stat. 734).

24 Rept. No. 717, 79th Cong., 1st sess.

involved in a de facto war. The President circumvented both the Constitution of the United States and the Charter of the United Nations and bypassed the Congress when he committed the Armed Forces of the United States to war in Korea. However, neither the United States nor the token forces of some members of the United Nations can now abandon Korea to the forces of Communist-inspired armed aggression. Thus there is but one alternative: Decide upon the goal in Korea and then proceed to its achievement.

Mr. WHATLEY. I should also like to refer for the record to the excellent speech made by Senator Watkins on another date titled "The President Violates Treaty," in the Congressional Record of February 19, 1952.

It has been alleged that the treatymaking process of the Constitution and the procedure of ratification are now quite adequate to protect our rights.

I merely wish to refer to two recent examples that will be recalled by many members of this committee, to illustrate that the Senate, as now staffed, cannot adequately evaluate, at all times, very important issues.

First, Senator Dirksen proposed a very simple and innocuous reservation to the treaty of peace with Japan: The Senate ratifies this treaty

with the understanding that nothing contained in this treaty shall be construed to impair any limitations on the right of the United States as a sovereign power to exercise complete and unlimited control over its foreign policy, its military establishment, and its domestic concerns.

The reservation was defeated by a vote of 29 to 47, and therefore I doubt very seriously that many Members of the Senate who voted against such a reservation had even an opportunity to read the reservation before they voted on it.

I recall the passage, also, by the vote of six Senators of that important and profound issue of extending the geographical area of the operation of the North Atlantic Treaty, in ratifying the GreekTurkish Protocol, to additional hundreds of thousands of square miles of the Mediterranean, and permitted our protection of British ships off the coast of Egypt from attack by planes from Egypt, when that country was almost at war with Britain.

I have just one other brief statement. In all of the debate upon this North Atlantic Pact, the proponents, Mr. Acheson and all the administration witnesses, stressed the importance of the first sentence in article XI which was inserted upon the insistence of Senator Vandenburg and Senator George, to which Senator Watkins referred in his colloquy the other day with Secretary Dulles. I refer to the phrase: and its provisions carried out by the parties in accordance with their respective constitutional processes.

Yet, I have subsequently examined the statements by Mr. Acheson and other administration witnesses in that respect and I find no instance in which any of them made the categorical statement that these "constitutional processes" contemplated the action of the Congress in declaring war as a prerequisite to going to war. Yet, most Senators and the public gained the opposite understanding.

I think Mr. Acheson was technically honest on the point, I consider it to be the sharpest kind of practice, almost shyster tactics and not the type of dealings with Congress by the Executive that we should have in the procedure of "advice and consent."

Mr. James Reston pointed out, in an article in the New York Times at the time when this phrase was put into the Atlantic Pact, that we did by this language retain some veto over automatically going to war pursuant to article V, but the veto was the veto of the Executive and not that of the legislative, and Mr. Dulles in his colloquy with Senator Watkins the other day laid stress upon the fact that neither the treaty nor the United States Charter could not circumscribe or affect the action of the President in his powers to go to war without a declaration of war.

I think Mr. Dulles is of the opinion, also shared by Mr. Acheson and others, that this power of the President is not circumscribed by the simple language in article I, section 8, and I therefore submit that any resolution which would be reported out of this committee should contain language which would make it clear that that power of Congress to declare war is a prerequisite to going to war except when our territory or troops are attacked. This could be done, if you cannot get a constitutional amendment through, by the passage of a joint resolution, requiring the President's signature, stating that it shall be illegal for any official of the United States or officer of the armed services to direct or order the use of armed forces or hostilities in certain situations or events requiring the action of Congress as a prerequisite.

I am very grateful for the time you have given me and ask permission to extend my remarks in the record. (Supplementary statement attached.)

SUPPLEMENTARY STATEMENT (D. WHATLEY)

If such a resolution were signed by the President (and I believe President Eisenhower would sign it), I submit it would constitute an effective assurance to our citizens and to our allies abroad (who fear more than almost anything else that America will start another shooting war following some future emergency or incident) that we will not be as trigger-happy as Mr. Truman proved to be in Korea, when he acted precipitately and unilaterally to enter a civil war several hours before the Security Council was scheduled to meet to decide what action, if any regarding the use of armed force should be taken. Such a resolution, I submit, should refer to the procedures set forth in chapter VII of the U. N. Charter, which procedures Senator Watkins, in the article just inserted in this hearing, demonstrated were flagrantly violated by President Truman. Such a resolution would reaffirm what the framers of our Constitution, almost all of the members of the Senate who ratified the U. N. Charter and the Atlantic Pact, and the general public as well, intended and understood to be the meaning of the constitutional power of Congress to declare war: not merely an innocuous legal formality ratifying the unilateral action of a President in plunging our Nation into war when neither our citizens, our troops, or our territory is attacked or threatened, but instead a prerequisite to such action by the President in such circumstances. It should, I hope, repudiate the doctrine of the unlimited power of the President to deploy our Armed Forces in time of peace to defend any place or country on earth, in violation of the intent of the framers of the Constitution in using the words "common defense" and in disregard of the sentiment of Congress, and his unlimited power to order hostilities without consulting Congress. These doctrines have been espoused by the State Department memorandum I referred to, and Mr. Dulles has never repudiated them. Many spokesmen for the previous administration have asserted that both the U. N. Charter and the Atlantic Pact add to the President's powers in both these areas. These questions have never been resolved, and I submit that no constitutional question is as important to resolve, either by joint resolution, reaffirmed formally by each new President when he assumes office, or by constitutional amendment, if any President should refuse to sign or reaffirm such a statement, then the Congress should refer it as a constitutional amendment to the States. Either procedure, I believe, would be some assurance and deterrent to any future action by a President similar to that of Mr. Truman, in declaring