to emphasize that in the United Nations Charter the word was used to limit the capacity of the United Nations to intervene. In article II, paragraph 7, of the United Nations Charter, it says that the United Nations shall not intervene in matter which are essentially within the domestic jurisdiction of a State. I would say that you could transliterate that to mean that the United Nations shall not intervene in matters in which States have undertaken international obligations by treaties. If you try to apply that conception of domestic jurisdiction to limit the treatymaking power, you are getting yourself into an absurdity, because it simply says that you cannot make treaties except on matters in which you already have undertaken obligations by treaties. In other words, the function of treaties is to undertake new international obligations.

Mr. SMITHEY. Then do you hold, sir, that once a matter has become in some form the subject of any international agreement, it is no longer a matter essentially within the domestic jurisdiction?

Professor WRIGHT. That is true. So far as the United States has undertaken an international obligation, then you cannot say the interpretation or application of this obligation is a domestic matter.

Mr. SMITHEY. If we made a treaty such as the proposed covenant on human rights, it could logically be said that the human rights within the United States are no longer a matter within the domestic jurisdiction?

Professor WRIGHT. The specific obligations undertaken by the treaty are not matters of domestic jurisdiction. You have to look at specifically what we have obliged ourselves to do in the treaty.

Mr. SMITHEY. Do you go so far as to say, as some apparently have said before this committee, that in the case of the Genocide Convention, if it ever was adopted and if the draft statute of the international criminal court was adopted with the provision which says that trial shall be without a jury, that would be a matter then no longer within the domestic jurisdiction? Would you go so far as to say that was constitutional?

Professor WRIGHT. I think so. I am not saying that the Senate would do that, but I should say that if the Senate ratified a treaty on genocide and then later ratified a convention establishing an international criminal court with jurisdiction over the crime of genocide, the question of the exercise of that jurisdiction by the court would not be a domestic question.

Mr. SMITHEY. And they could constitutionally do it?

Professor WRIGHT. I think the only test that I can see as to what is appropriate for treatymaking is the discretion of the President and the Senate. I think that it may be that in the drafting of this document people had a conception of domestic jurisdiction similar to that which was expressed by the Supreme Court, not using those terms, in the case of Geofroy v. Riggs, with which I presume you are familiar and which I think is the classical case, in which the Supreme Court laid down the limitations upon the treatymaking power. The first one was that the treaty power expressed in the Constitution is in terms unlimited except by those restraints which are found in that instrument against the action of the Government or of its Departments and those arising from the nature of the Government itself. It would not be contended that it extends so far as to authorize what the Constitu

tion forbids or a change in the character of the Government or in that of one of the States, or the cession of any portion of the territory without its consent. But with these conceptions it is not perceived that there is any limitation of the questions which can properly be adjusted touching any matter which is properly the subject of negotiation with a foreign country.

I would say that what was intended by the use of "domestic" jurisdiction is a political issue, not a legal issue. The Senate and the President have to ask themselves. "Is this a proper subject of international negotiation? In other words, is it important that we should undertake international commitments?" If the President and the Senate think that it is, it seems to me it is their judgment as political organs of the Government. I do not think the Supreme Court would ever hold that their judgment was wrong.

Mr. SMITHEY. In other words, perhaps they could enter into a convention or agree to a convention on maternity protection and that would then become a matter of international concern.

Professor WRIGHT. So far as the obligation of the United States is concerned, we are bound to live up to our treaties. I am not saying that the President and the Senate would do that, but as my two predecessors have said, I do not think the Senate can relieve itself of the responsibility of making a sound judgment on problems as they arise. Senator KEFAUVER. Dr. Wright, I did not quite get your statement about section 4. As I interpret section 4, if the President enters into any agreement with any foreign nation, even though it may be an agreement relative to the surrender of that foreign nation, a military decision, it would still have to be submitted to the Senate, because the last sentence is that "Such agreements shall be subject to the limitations imposed on treaties, or the making of treaties, by this article." Under section 3 it cannot become effective unless it is submitted to Congress. Of course, the general law, which is not changed, is that it must be approved by two-thirds majority of the Senate.

Professor WRIGHT. I referred in what I said to the first sentence in section 4. The second section adds something more. My statement in regard to the first sentence was that if the word "law" is interpreted as it is in the sixth article of the Constitution, I think it would be merely declaratory of the existing situation, because the President can make executive agreements under his powers as Commander in Chief, under his specific powers delegated to him by Congress as in the Reciprocal Trade Agreements Act, or under the authority of treaties which exist. If you extend the word "law" to mean treaties, the Constitution, and acts of Congress, then this simply declares what is the present situation.

Senator KEFAUVER. What I am interested in is what the second sentence does.

Professor WRIGHT. The second sentence would be subject to the same objection which I stated in regard to sections 2 and 3, that if the executive agreements could not be applied until Congress had acted, I think it would create an impossible situation, unless, as I have said, Congress delegated very broad powers to the President. Senator KEFAUVER. That is all. Thank you, Mr. Chairman. The CHAIRMAN. Thank you very much.

We will now call Mr. Oliver.

STATEMENT OF COVEY T. OLIVER, PROFESSOR OF INTERNATIONAL LAW, UNIVERSITY OF CALIFORNIA, BERKELEY, CALIF.

Professor OLIVER. Mr. Chairman, as a west-coast man who does not have much personal opportunity to come to the seat of his Government and to present his point of view to his lawmakers, I appreciate the opportunity of being here today and your patience in hearing me at this late hour.

The CHAIRMAN. Do not let the late hour bother you a bit. Take all the time you need, Mr. Oliver.

Professor OLIVER. Because of the lateness of the hour, despite your generosity, if you have no objection I will paraphrase or summarize some points made in my statement.

I am here in a personal capacity desirous of exercising my privilege as a citizen to talk over Senate Joint Resolution 1. Although I am here in a personal capacity, I do think that I can say to the committee that, as a part of my job outside of university walls, on the west coast, I do take part in a good many discussions of foreign affairs and related topics, and in the course of those discussions at various groups like the League of Women Voters, and so on, I gather a few impressions that make me believe that there are a good many thinking people in our part of the country who share some of the concerns that I have attempted to express in the paper you have in your hands.

The statement indicates what my qualifications might be for speaking on this topic. In outline they are that I teach international law and organization along with some other courses in law school as my professional way of life. Secondly, I grew up in a part of the United States which has always had a great interest in international affairs, that is, the Texas-Mexican border, where I learned on the ranch to speak Spanish from the ranch hands before I picked up my own English. I lived in a part of the country where the Mexican revolution had just ended, where many American property interests had been affected seriously by the situation existing in that country at that time. Also, I am glad to say that this particular town that I grew up in was then and still is a place where Mexican Americans and Anglo-Saxon Americans live together with full sharing of civil rights and in splendid harmony. So, you can see that before the fortunes of war ever took me on a tour of duty with the Department of State, first in Spain during the war and then in the effort to settle World War II, I had a bit of orientation toward the importance to our way of life of our relations with other countries. So much for background and a summary of qualifications.

At the bottom of page 2 I tell the committee that I appear as a standpatter with respect to the present division of power between the Federal and central governments and within the Federal Government regarding this question. I do not mean to be facetious when I say that one might paraphrase Mr. Churchill and say, as I honestly believe, that Senate Joint Resolution 1 could be summed up, "Seldom in human history would so much be risked by so many for so little cause."

Before getting into the brief generalizations that I want to mention from this paper, permit me, Mr. Chairman, to mention two specific little items that appear to run through the report of the committee of the last Congress which considered Senate Joint Resolution 130.

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Mr. SMITHEY. That is not the report, is it, Mr. Oliver? That is a copy of the hearings.

Professor OLIVER. I beg your pardon. It is a copy of the hearings;

yes.

A good many of the gentlemen who testified then took the position that our country is in dangerous isolation in Christendom with respect to self-executing treaties. Honestly, Mr. Chairman, I do not know and I do not pretend to know what the state of the law is from country to country with respect to that. Professor Preuss, a distinguished authority, has made a collection of studies on this subject, to which the committee probably has reference. Just the other day, as I say in my statement, in connection with something else I ran across a recent case in France involving a Spaniard named Cot, who with his wife had been baking bread since 1924. Cot had been trying to get an identity card that justified him in making bread. You know, in France you have to have a general identity card, an identity card for this, that, and the other. He tried pretty hard. He tried too hard, and the French picked him up because he was baking bread without the right identity card. The French authorities said that under the decree law of May 14, 1938, a foreigner could not bake bread in France. It looked pretty bad for this man until it was discovered that the new French Constitution of 1946 declares that treaties made between France and other countries shall, without more, be superior to any specific legislation in France. The result was that under an old treaty of 1862 between France and Spain, this particular little businessman was allowed freely to pursue his calling of baker in France.

That led me to think that my first point, made at the bottom of page 4, should develop the theme that Senate Joint Resolution 1 is bad for American international enterprise. I do not think I have to explain to you at this late hour why it is important for us to protect our enterprise overseas. One immediate reason that many people believe in is that it helps us in this terrible struggle going on between the forces of communism and the forces of freedom in the world. But even if we did not agree with that, we still have a duty to protect Americans overseas. That has been one of the strongest and proudest functions of the Foreign Service and the Consular Service of the United States from the very beginning of our history, and I am glad to say that for a brief period of time I had the opportunity to assist in that sort of work in the Department of State.

My point is that in order to get rights overseas we usually have to give at least theoretical reciprocity. Sometimes it is actual; more frequently, I submit, it is theoretical because our people are more outgoing than Frenchmen are. It is a rare case, I assume, that you find a Frenchman wanting to come to this country to do business in the State of Texas in contravention of Texas law but given the protection of a treaty between France and the United States to carry on that business. In order to get that reciprocity, it is essential, as the committee has recognized, to provide that under certain circumstances the Federal law shall override contradictory State or municipal prohibitions.

The only question remaining is whether the proposal made in the present resolution is an effective, practical way to do that. I suggest on page 5 that it is not, because, for one thing, this will shift onto

the shoulders of Congress many more cases of special pleading, group interest, conflicts of interest, than now come to bear upon it.

As I read the proposal, if State law is to be overridden, it is required not only that the procedures of negotiation by the Executive, concurrence by the Senate, and promulgation by the President, but also the regular procedures of legislation in two Houses of Congress with dual or multiple committee hearings in the two Houses over some period of time be followed before the simplest type of establishments treaty of the sort that we have been negotiating from the_beginning of our economic and commercial history could become effective within one of the several States of our Union. It seems to me that this has the effect of imposing a tremendous additional task and an unpleasant one on Congress. I suggest in my statement that an inevitable trend of this would be toward a type of unconscious economic isolationism. Regardless of any other types, I submit that this particular one is not in our national interest any more.

I am looking at this whole thing from the standpoint of the national interest as I see it. The national interest does not include only traders going abroad. To me, as a matter of fact, and to many of us on the west coast, Mr. Chairman, the crying need for basic sources of raw materials that we are now exhausting in this country is the greatest reason for us to attempt through the treaty process to obtain reciprocal rights in other countries. If we want to get manganese, we would like to get it from an efficiently and, we are thinking, American-operated concern at the foreign sources of supply, now that the Soviet Union is seeing to it that we do not get the manganese that we used to get from them.

So much for point No. 1.

Mr. SMITHEY. Before we leave that, Mr. Oliver, as a matter of fact, is it any legitimate concern of the power with whom we contract by treaty as to how we enforce, or as to how we implement, the terms of that treaty?

Professor OLIVER. No, sir, as long as they have reasonable assurance that the treaty will be implemented.

Mr. SMITHEY. As a matter of fact, in the case which the witness who preceded you cited, that is, the case of Geofroy v. Riggs, the treaty involved there acknowledged that certain State laws were contradictory to the terms of the treaty and that all the Federal Government would do there would be to go to the States and recommend that they conform to the treaty. Is that not true? Are you not familiar with the treaty involved in Geofroy v. Riggs?

Professor OLIVER. No; I am not, but certainly I think it has become clear since that if there is a conflict, the foreign government at the present time may rest on the assurance of Asakura v. City of Seattle, that the Federal commitment will be complied with regardless of a contradictory, in that case, municipal ordinance. So I think the answer is, yes, that at the present time a foreign government can rely, under the constitutional processes as they exist here, on nonuse of lack of Federal power to explain nonperformance of the treaty.

Mr. SMITHEY. If we were to enter into a treaty with Canada and it has been stated before this committee that the Canadian law provides that before a treaty can become municipal law it must be implemented by act of the parliament of Canada-if we were to enter