With regard to the U.S. undertakings, the Administration is particularly concerned about two points:

-First, that congressional approval of the proposal on the technicians not link the Sinai agreement to the U.S. undertakings-which are distinct and separate; and

Second, that U.S. statements of intention not be given a legally binding character which was never intended and is not inherent in them.

The Administration is convinced that congressional approval of the proposal to station technicians in the Sinai does not import or imply approval of anything more.

The United States is not a party to the Sinai agreement. That agreement is between Israel and Egypt; they are the only signatories and the only states bound by it. The agreement repeatedly speaks of the obligations of "the parties"; it is beyond dispute that "the parties" are Egypt and Israel, and not the United States.

The agreement provides, in an annex, that in the buffer zone between Egypt and Israel-in which the United Nations Emergency Force will continue to perform its functions-there will be established an early-warning system entrusted to U.S. civilian personnel. The proposal of the United States, for which approval of the Congress is being sought, provides details of that earlywarning system. That proposal is described as a part of the agreement between Egypt and Israel, but that does not imply that the United States is party to this agreement. By the same token the U.S. assurances and undertakings before this committee, while given on the occasion of, and concordant with, the conclusion of the Sinai agreement between Egypt and Israel, are not in any sense part of the Sinai agreement.

The special position of trust enjoyed by the United States inevitably means that both sides attach great significance to our views. Statements of our intentions, therefore, served as a lubricant in this most recent negotiation just as they have in every previous mediation effort. But they must be seen in perspective and in the light of historical practice. It is extremely important, therefore, that in approving the sending of U.S. technicians the Congress should take care not inadvertently to create commitments that were never intended.

We have submitted all documents containing U.S. commitments. Not all provisions in these documents amount to binding undertakings. They include:

-First, assurances by the United States of our political intentions. These are often statements typical of diplomatic exchange; in some instances they are merely formal reaffirmations of existing American policy. Other provisions refer to contingencies which may never arise and are related-sometimes explicitly-to present circumstances subject to rapid change.

-Second, undertakings or assurances by the United States which are conditional on existing or prior authorization and appropriation by the Congress or which fall within the constitutional authority of the President to conduct the foreign relations of the United States.

Thus to speak of memoranda of agreement as executive agreements is by no means to say that each of their individual provisions is binding upon the United States. That depends entirely upon the content of the specific provisions in question. Moreover, nothing in these particular documents constrains congressional action in any issue involving the future legislative process.

The fact that many provisions are not by any standard international commitments does not mean, of course, that the United States is morally or politically free to act as if they did not exist. On the contrary, they are important statements of diplomatic policy and engage the good faith of the United States so long as the circumstances that gave rise to them continue. But they are not binding commitments of the United States.

For the full text of Secretary Kissinger's statement before the Senate Foreign Relations Committee on Oct. 7, 1975, see Dept. of State Bulletin, Vol. LXXIII, No. 1896, Oct. 27, 1975, pp. 609-613; Hearings on Early-Warning System in Sinai, Committe on Foreign Relations, U.S. Senate, Oct. 6 and 7, 1975, pp. 206– 243.

On October 13, 1975, President Ford signed into law the joint resolution to implement the United States proposal for the earlywarning system in Sinai, Public Law 94-110; 89 Stat. 572; 22 U.S.C. 2441 note. Section 5 of the joint resolution provides:

The authority contained in this joint resolution . . . does not signify approval of the Congress of any other agreement, understanding, or commitment made by the executive branch.

The U.S. proposal for an early-warning system in the Sinai, which had been signed on Sept. 1, 1975, entered into force on Oct. 13, 1975, between the U.S. and Israel (TIAS 8155; 26 UST 2271) and the U.S. and Egypt (TIAS 8156; 26 UST 2278), respectively.

The validity and legal sufficiency of certain agreements and assurances made by the United States in connection with the Egypt-Israel disengagement agreement of September 4, 1975, were discussed in a series of memoranda by the Office of Legislative Counsel (OLC) of the Senate and the Legal Adviser's Office of the Department of State.

The OLC, in a memorandum of September 24, 1975, took the position that one memorandum of agreement between the United States and Israel, dated September 1, 1975, and possibly two other documents setting forth assurances from the United States to Israel and Egypt, respectively, were "beyond the power of the

President to enter into without the advice and consent of the Senate" and were therefore without force and effect under domestic constitutional law. The OLC argued further that at least one of the memoranda of agreement would be without force and effect under international law, on the grounds that Israel should reasonably have known of its constitutional defect. Two other agreements, it concluded, would be valid under international law, as Israel could not reasonably have known of the "constitutional defect."

Using as its sources, (1) the text of the Constitution, (2) the intent of the framers, (3) actual practice, (4) Supreme Court and other cases, (5) criteria suggested by various authorities, and (6) criteria employed by the Department of State in its Circular 175, the OLC concluded that

Strong support exists for the proposition that an agreement which

(1) relates to a subject matter of exceptional national importance;

(2) constitutes a commitment within the meaning of the national commitments resolution; or

(3) qualifies as a treaty under the "Circular 175" criteria employed by the Department of State is in violation of the Constitution if entered into by the President without the advice and consent of the Senate.

Under international law as evidenced in various sources, including Articles 45 and 46 of the Vienna Convention on the Law of Treaties, the OLC noted that

(1) a State may be bound, under international law, by an agreement made in violation of its constitutional process;

(2) a State is not bound if (A) such violation is fundamental; and (B) the other party to such agreement should reasonably have known of the constitutional defect;

(3) such State is bound, however, if its subsequent conduct indicates acquiescence in the validity of the agreement.

Monroe Leigh, Legal Adviser of the Department of State, replied to the OLC memorandum on October 6, 1975, stating that the choice of form in the United States had never been regulated by law, that there were no judicial decisions, statutes or Federal regulations on the issue, but that the President was expected to adhere to customs and usages concerning form which had evolved since conclusion of the first executive agreements in the early years of the Republic. He said:

Within the general framework of international agreements authorized by statute, treaty, or Constitution, the President has

the discretion to choose whether to conclude any particular agreement as a treaty or as an executive agreement. Provided the agreement is properly authorized by law, there is no legal requirement that it be concluded either as a treaty or executive agreement. The President's choice is based upon his appraisal of the merits of each approach. He naturally takes into account prior U.S. practice with respect to the general type of agreement in question, and he takes into account the several sources of guidance provided by the Department of State Circular 175 Procedure. His determination is thus shaped by general standards and usages that have evolved over the years and the President will rarely disregard this "common law." He will not willingly or lightly flout the general expectations and preferences of the Congress, or the established practices of many years' duration.

ultimately it is the President as the sole negotiator for the Nation in foreign affairs who must determine the degree of formality and solemnity he wishes to give to a particular international agreement. Such policy considerations weigh heavily in his final determination. Since these considerations are necessarily relevant to the conduct of U.S. foreign policy, a legal requirement that a particular type of agreement has necessarily as a matter of law to be submitted as a treaty would constitute an unacceptable interference with the President's capacity to serve as negotiator in international affairs, and for that reason, would probably be unconstitutional

Mr. Leigh specifically rejected the proposition that all "important" international agreements must, as a matter of law, be submitted to the Senate as treaties, noting that no statute, judicial decision, or scholarly authority had been cited by the OLC in support of that proposition. He stated, on the contrary, that neither the text of the Constitution nor the intent of the framers provided guidance on the choice of treaty or executive agreement, while longstanding practice and the Supreme Court holdings in United States v. Belmont, 301 U.S. 324 (1937), and United States v. Pink, 315 U.S. 203 (1942) recognized the right of the President to enter into executive agreements, even on important subjects. Mr. Leigh analyzed the cases that had been cited by the OLC as "tangentially relevant" to the issue but challenged the conclusion that they provided any support for the "importance" test as a limitation on the power of the President to make executive agreements. The cases included Holmes v. Jennison, 14 Peters 540 (1840), Valentine v. U.S. ex rel. Neidecker, 299 U.S. 5 (1936), the Belmont case, supra, and United States v. Capps, 204 F.2d 655 (1953).

Quoting from McDougal and Lans, The Yale Law Journal, Vol. 54: 181, pp. 237-238, Mr. Leigh referred to the longstanding practice of concluding executive agreements with two-House legislative support, and cited historic examples indicative of the "importance" and "dignity" of agreements that had been so concluded. With respect to the Department's criteria for deciding upon treaty or executive agreement, Mr. Leigh pointed out that the Circular 175 standards by their own terms are not legally binding, but even if they were, "it is impossible to determine that such standards have been violated in the case of the Middle East documents in question."

In a second memorandum on the standing of the Middle East agreements, the OLC commented upon the response of the Legal Adviser of the Department of State. It acknowledged that some of the matters previously raised might now be moot, but it objected to what it termed "the claims of broad executive authority asserted by Monroe Leigh." The OLC stated that Mr. Leigh's response "proceeded entirely from the premise that the President may enter into any international agreement solely on the basis of his own executive authority and that every such agreement will be valid notwithstanding the absence of advice and consent of the Senate." The OLC held the view, on the other hand, that "the text of the Constitution. . . must be given some meaning." It argued that if Article II, section 2, clause 2, providing for Senate advice and consent to treaties, has any meaning, "it is that some international agreements must be regarded, constitutionally, as treaties," and if so, "it would seem that an agreement which 'relates to a subject matter of exceptional national importance' must be so regarded."

In a reply of February 4, 1976, to the second OLC memorandum, Arthur W. Rovine, Assistant Legal Adviser for Treaty Affairs, Department of State, pointed out that Mr. Leigh had not claimed that the President's choice of treaty or executive agreement was unfettered. He stressed Mr. Leigh's point that the international agreement must be legally authorized to begin with: "That is to say, there must be authority in a statute, a treaty, or the Constitution itself for the President to enter into the agreement. Provided he has such authority, he may lawfully choose between treaty or executive agreement." He reemphasized the "set of customs and usages concerning form which are invariably adhered to in the process of international agreement making."

With respect to the intention of the framers of the Constitution, Mr. Rovine examined subsequent action and statements by Presidents James Monroe, James Madison, Thomas Jefferson, and John