Senator DIRKSEN. Of course that is where we disagree. The CHAIRMAN. We will call Mr. Eichelberger. Mr. CLARK EICHELBERGER (American Association for Advancement of the United Nations). May I defer to 2 of my colleagues, 1 from California and 1 from Chicago, who have to go back home. I can either stay tomorrow, or come down again. My time is not so pressing as theirs. The CHAIRMAN. You may have to come down again, because tomorrow morning I am all tied up. Mr. EICHELBERGER. I am very anxious for Mr. Oliver and Professor Wright to appear before you. Senator KEFAUVER. Prof. Quincy Wright is one of the men who has to go back. Mr. OLIVER. I will defer to my colleague, Professor Wright. STATEMENT OF QUINCY WRIGHT, INTERNATIONAL LAW FACULTY, UNIVERSITY OF CHICAGO Professor WRIGHT. Gentlemen of the committee, my name is Quincy Wright. I have been a teacher of law for the last 35 years at the University of Pennsylvania, Harvard, the University of Minnesota, and the University of Chicago. I may say that I have given particular attention to this type of problem. I wrote a book on it in 1922 called American Foreign Relations, and I have been writing articles on it ever since. I will read my statement first, and I shall be very glad to answer questions afterward. Mr. SMITHEY. Mr. Wright, before you begin, are you a lawyer? The amendment to the Constitution proposed by Senator Bricker in Senate Joint Resolution 1, 83d Congress, 1st session, seems to me unnecessary to meet any threat to constitutional liberties, to executive usurpations, or to national independence. At the same time it would seriously hamper the Government in conducting foreign policy in the national interest, and in exercising leadership in the United Nations and in the world to broaden the acceptance of principles and the observance of practices which protect our way of life. I think that any amendment to the treatymaking power would be unfortunate at this time, but the present proposal seems to me to have some particularly objectionable provisions. Seetion 1 of the proposal which prohibits treaty provisions that "deny or abridge any right enumerated in this Constitution" is merely declaratory of the existing situation. While no treaty has ever been declared unconstitutional, the Supreme Court has often said that the treatymaking power is subordinate to the Constitution as are all powers of the Federal Government and consequently cannot impair guaranteed individual rights. In a case that arose diplomatically in 1854, Secretary of State Marey informed the French Government that the provisions in a French consular treaty giving French consuls immunity from subpena as witnesses could not be applied to deprive an individual accused of crime of the right to subpena witnesses guaranteed by the sixth amer.dment of the Constitution even though the witness wanted was a French consul. It is true Secretary Marcy thought that France was entitled to suppose that the treaty concluded by the constitutional process was valid and that France was, therefore, entitled to amends for our failure to carry out this clause in the case of Consul Dillon (5 Moore's Digest of International Law 80, 167), but that would be the situation even with the proposed amendment. A foreign government cannot be expected to know of constitutional restrictions which the President and Senate have overlooked when they ratified the treaty on behalf of the United States. Section II is difficult to interpret because the phrase "essentially within the domestic jurisdiction of the United States" appears to be given an unusual meaning. Under international law a state can regard any matter whatever, in which it takes an interest, as "essentially within its domestic jurisdiction" insofar as the action which it proposes to take does not affect any of its international obligations under customary international law or under a treaty to which it is a party. The interpretation of a state's international obligations is, however, always an "international question" and not "a domestic question' (Tunic Nationality Decrees, PCIJ, 1923, series B, 4, p. 26; I World Court Rep. 157; The Lotus, PCIJ 1927, series A, 10, pp. 18-19; 2 World Court Rep. 35). It is, therefore, clear that the concept of domestic jurisdiction cannot be a limitation upon the treatymaking power. It belongs to the Sovereignty of states to make treaties, but every treaty provision by which a state accepts international obligations to some extent qualifies its "domestic jurisdiction." For example, the making of tariffs is normally within the domestic jurisdiction of a state, but if the state makes a treaty establishing a tariff rate on a particular article, it has accepted an international obligation not to change that tariff rate during the life of the treaty, and consequently, has removed that particular matter from its domestic jurisdiction. Similarly, if it has accepted a treaty obligation to respect certain human rights of its citizens within its territory and to accept an international procedure for ascertaining the facts if complaints are made it has removed this question from its domestic jurisdiction. This, in fact, was done by Italy, Finland, Bulgaria, Hungary, and Rumania in the peace treaties of 1947. When complaint was made in the United Nations that these treaty obligations had been violated by the last 3 of these States in the cases of Cardinal Mindszenty and others, these 3 States refused to comply with the procedure set up by the treaties for examining complaints on the ground that the matter was within their domestic jurisdiction. The United States took the initiative in obtaining an advisory opinion from the International Court of Justice on the matter and the Court held that: The interpretation of the terms of a treaty for this purpose could not be considered as a question essentally within the domestic jurisdiction of a state. It is a question of international law which by its very nature lies within the competence of the Court (IICJ Rep. 1950, p. 65; American Journal of International Law 1950, vol. 44, p. 745). Since the main function of treaties is to create international obligations and thus to remove certain questions from domestic to international jurisdiction, a prohibition against making treaties which authorize or permit international: supervision, control, or adjudication of any matter essentially within the domestic jurisdiction of the United States— would in substance prohibit all treatymaking. The phrase "essentially within the domestic jurisdiction" must, therefore, be intended to have some different meaning from that which it has under international law. It may, for example, be intended to refer to all exercises of jurisdiction within the territory of the United States. If, however, that is the meaning, it would have prohibited a large proportion of the treaties which the United States has made. Most of our commercial treaties since the very first one we made with France in 1778 assure foreigners rights within the United States, such as the rights to acquire property, to inherit, and to conduct business, with the object of reciprocally securing such rights for American citizens abroad. By the constitutions of most of the international unions and specialized agencies, as well as by the United Nations Charter itself, the participating states have agreed to observe certain rules, principles, and standards in legislating, administering, and adjudicating within their territories. By the Universal Postal Union, for example, which we entered in 1870, the United States has agreed that the Post Office Department shall handle incoming and outgoing foreign mails in a certain way. If the proposed amendment is intended to prevent the acceptance by treaty of obligations concerning individual rights and government activity in our territory, we would be practically prohibited from participation in the United Nations and the specialized agencies, and also from making most of the usual types of bilateral treaties. It may be, however, that the phrase "domestic jurisdiction" was intended to include only activities like those specifically mentioned in section II which forbids treaty authorization or permission to any foreign power or any international organization to supervise, control, or adjudicate rights of citizens of the United States within the United States enumerated in this Constitution. It has never been suggested that any foreign or international agency could interpret or apply the Constitution of the United States, yet literally interpreted this is the only thing prohibited. On the other hand, all obligations and rights enumerated in treaties are in principle to be interpreted by agreement of the parties, or by an international procedure which they have accepted. Consequently, if this section is intended to refer, not to rights enumerated in the Constitution, but to treaty rights similar to rights enumerated in the Constitution, it would prohibit the United States from becoming a party to any treaty such as a covenant of human rights setting a minimum standard of civil liberties for American eit-. izens as well as citizens of other countries. I do not believe we should abandon our interest in the advancement of human rights. It is clearly impracticable to suppose that we can gain respect for such rights in other countries if we incapacitate ourselves from assuming international obligations for maintaining such rights in our own territory. We have, in fact, pledged ourselves, by ratifying the United Nations Charter, to take joint and separate action in cooperation with the United Nations to promote universal respect for, and observance of, human rights and fundamental freedom for all without distinction as to race, sex, language, or religion. (Art. 56). Do we intend to repudiate this pledge? Section III would do away with the self-executing character of treaties established by article VI of the Constitution. It would mean that after a treaty had become a binding international obligation of the United States, it could not be enforced as law until Congress had acted. Consequently, internationally valid treaties could be violated through the negligence or adverse action of any of the 48 States, or by conflicting provisions in earlier acts of Congress or common law. I do not believe we should assume this risk of treaty violations. Many countries have adopted our system of making treaties applicable in domestic law as soon as they come into force internationally. Other States regularly postpone ratification until domestic legislation has been passed assuring their legal application. Countries with a parliamentary form of government, like Great Britain, are not faced by this problem to the same degree as are governments of checks and balances, like ours, because the executive which makes the treaty is always assured of a majority in Parliament to pass whatever implementing legislation my be necessary (Preurs, The Execution of Treaty Obligations Through Internal Law, Proceedings American Society of International Law, 1951, p. 82 ff.). In our form of government the supremacy clause has been an important protection of the Nation's good faith in treaty observance and ought not to be changed. Section IV of the proposal is ambiguous in providing that executive agreements shall be made Only in the manner and to the extent to be provided by law. If the word "law" includes the Constitution and treaties as it does under article VI of the Constitution, then this phrase would make no change in the present situation because executive agreements have always been made in accordance with one or the other of these types of law. The President can only make them within the orbit of his powers directly under the Constitution or as authorized by treaties or by acts of Congress. If, on the other hand, the word "laws" refers only to "acts of Congress," it would seriously hamper the President in the exercise of his powers as Commander in Chief to make military agreements, his powers as Chief Executive to make administrative agreements to maintain our international obligations, and his diplomatic powers to make agreements upon foreign-policy objectives. In my opinion, restrictions upon the making of executive agreements are unnecessary and would seriously hamper the conduct of our foreign relations. The numerous agreements dealing with defense arrangements, mutual assistance, technical aid, exchange of persons, reciprocal trade, exchange stabilization, et cetera, require flexibility and expedition inconsistent with the treatymaking process and inconsistent with congressional action, unless, indeed, blanket powers are delegated. During our history the treatymaking power has frequently been under discussion, but usually it has been thought that it was too difficult rather than too easy for the Government to make treaties. The two-thirds rule in the Senate has often been criticized because it establishes minority control and it has been suggested that a majority of both Houses of Congress would be preferable. The present proposal, however, moves in a different direction and would make it more difficult and in many cases impossible to make treaties. I consider the proposal unnecessary, ambiguous, and dangerous. What is needed is a strengthening of the capacity of the United States to act wisely and effectively in international affairs, not hampering restrictions which will suggest to the other nations that the Congress and the States distrust the President, the Senate, and public opinion. Let us have confidence in our country and our Constitution and not tell the world that we are afraid to accept the responsibilities which have been thrust upon us. Let us observe the principles which are our heritage and employ the capacities which are the fruits of our institutions in the long and difficult task of developing in cooperation with other nations a world in which we and they can live in peace and security, thus giving reason and justice an opportunity to survive in our shrinking world. We cannot escape history. The CHAIRMAN. Senator Kefauver, do you have any questions? Senator KEFAUVER. Dr. Wright, I have enjoyed your statement very much. I take it that you feel that section 1 is already the law of the land, that we cannot make any treaty which violates the Constitution, and therefore there is no use creating a controversy about it; is that correct? Professor WRIGHT. That is correct. It seems to me that the treatymaking power is subordinate to the Constitution, but I should make this addition, which I think has confused some people: There is no doubt that the treatymaking power is broader than the explicitly delegated legislative powers of Congress. It seems to be quite obvious that the treatymaking power can encroach upon the normal powers of the State. As I pointed out, the very object of making commercial treaties is to get rights of property holding abroad for American citizens. Obviously, we cannot do that unless we give similar rights to foreign citizens in the United States. That is a matter that is normally within the legislative competence of the States. The Congress could not give a Frenchman the right to acquire property in the State of Louisiana unless it was in support of a treaty. So it is quite obvious that the treatymaking power given by the Constitution was intended to include matters which are not within the normal leg. islative powers of Congress. Senator KEFAUVER. Do you not feel that in section 2 the language, "or any other matter essentially within the domestic jurisdiction of the United States," might almost abolish the subject matter that could be brought into treaties, and in any event would lead to endless litigation as to what is meant by "essentially within the domeste jurisdiction of the United States?" Professor WRIGHT. Yes; that is my opinion, Senator Kefauver. Senator Dirksen had a good deal to say about the use of the word "domestic" jurisdiction in the United Nations Charter. I would like |