Arthur W. Rovine, Assistant Legal Adviser for Treaty Affairs, wrote to the Senator's constituent on April 16, 1980, in part as follows:

The International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights were signed by President Carter on behalf of the United States on October 5, 1977 and were submitted to the Senate, with recommended reservations and understandings, on February 23, 1978. While the Senate Committee on Foreign Relations held public hearings on the Covenants (and on two other human rights treaties) in November 1979, the Committee has not reported the treaties to the Senate. The Covenants are therefore not yet before the full Senate, but are still pending in Committee.

You have expressed concern about the possibility that Article VI of the Constitution might make treaties superior to the Constitution. It has always been the law of the United States that treaties must comply with the Constitution. The Supreme Court has so held on a number of occasions. Article VI of the Constitution provides:

"This Constitution, and the laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

In the 1957 case of Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148, the Supreme Court of the United States, in an opinion written by Justice Black, quoted Article VI and said:

"There is nothing in this language [Article VI of the Constitution] which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. . . . It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights-let alone alien to our entire constitutional history and tradition to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. There is nothing new or unique about what we say here. This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty." (354 U.S. 1, at 16-17.)

The Supreme Court concluded that "no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution." (354 U.S. 1, at 16.)

The primary purpose of the treaty clause of Article VI of the Constitution, as noted by Professor Louis Henkin of Columbia University Law School, was "to assure the supremacy of treaties to

state law." (Foreign Affairs and the Constitution, p. 156.) Under Article VI Federal statutes are also supreme over state law. But both statutes and treaties must be consistent with the Constitution.

The Supreme Court has also held that a treaty may be overridden in U.S. law by a subsequent inconsistent Federal statute, Whitney v. Robertson, 124 U.S. 190 (1888). As Justice Black pointed out on behalf of the Supreme Court in Reid v. Covert, "It would be completely anomalous to say that a treaty need not comply with the Constitution when such an agreement can be overridden by a statute that must conform to that instrument." (354 U.S. 1, at 18.)

In sum, it is settled law in the United States that treaties must be consistent with the Constitution.

You have also expressed concern about the effect of the Covenants on the right to own private property.

The Universal Declaration of Human Rights, adopted by the United Nations in 1948, provides in Article 17 that "Everyone has the right to own property alone as well as in association with others. No one shall be arbitrarily deprived of his property. Neither of the two Covenants contains this provision. The drafting history of the Covenants shows that while none of the negotiators, including the Soviet representative, objected to the inclusion of this clause in the Covenants, there was an unresolved dispute with respect to the precise terms governing compensation for expropriation of alien-owned property. As a result the private property clause was dropped. However, there is no provision in either Covenant which denies or diminishes the right to own private property, and in view of the drafting history of the Covenants, it is clear that there was no intention to eliminate or weaken that right.

Under general international law, any taking of private property must be non-discriminatory and for a public purpose, and must be accompanied by prompt, adequate and effective compensation. The absence of a private property provision in the Covenants does not contradict or change this customary rule of international law. It should be noted that the Departments of State and Justice have nevertheless recommended that the Senate adopt the following declaration and understanding to be appended to the U.S. instrument of ratification of the Covenant on Economic, Social and Cultural Rights:

"The United States declares that nothing in the Covenant derogates from the equal obligation of all States to fulfill their responsibilities under international law. The United States understands that under the Covenant everyone has the right to own property alone as well as in association with others, and that no one shall be arbitrarily deprived of his property."

This recommended Senate statement, which includes a reiteration of Article 17 of the Universal Declaration of Human Rights, would make clear that the United States will become a party to the Covenant only upon a legally binding understanding that private property rights shall be respected under international law and under the Covenants.

In addition, Article 5(2) of each Covenant provides that no derogation from any fundamental rights legally recognized in any country party to the Covenants is permitted simply on the ground that the Covenants do not recognize such rights or recognize them to a lesser extent. Therefore, even if the Covenants did not recognize the right to own private property, this would have no effect in the United States. Indeed, if the United States were a party to the Covenants, we would be internationally obligated under Article 5(2) not to derogate in the United States from the fundamental right to own private property.

In any event, United States ratification of the Covenants could not change or affect in any way the guarantee of the right to own private property in the United States as set forth in the U.S. Constitution. The Fifth Amendment of the Constitution provides that private property is not to be taken for public use "without just compensation." Since treaties may not supersede any provision of the Constitution, the absence from the Covenants of a private property clause cannot have any legal effect in this country.

The private property matter was not the reason that Presidents before President Carter did not sign the Covenants. Rather it was believed in prior years that the federal-state system in the United States presented a serious obstacle to U.S. ratification. In addition, the fact that the Senate had not yet approved the Genocide Convention made it appear uncertain that the Covenants would be approved. However, as federal-state relations have developed, most of the obligations of the Covenants are now within the jurisdiction of the federal government. In any event, the Departments of State and Justice have recommended a reservation that would make it clear that the federal-state relationship would not be changed by the Covenants.

Dept. of State File No. P80 0056-1357.

For the International Covenant on Economic, Social, and Cultural Rights, adopted by the U.N. General Assembly on Dec. 16, 1966, entered into force on Jan. 3, 1976, signed on behalf of the United States on Oct. 5, 1977, and the International Covenant on Civil and Political Rights, adopted by the U.N. General Assembly on Dec. 16, 1966, entered into force, Mar. 23, 1976, signed on behalf of the United States on Oct. 5, 1977, see S. Exs. D and E, 95th Cong., 2d sess. (1978).

President Carter had transmitted the two Covenants to the U.S. Senate for advice and consent to ratification on Feb. 23, 1978, together with the International Convention on the Elimination of All Forms of Racial Discrimination, adopted by the U.N. General Assembly on Dec. 21, 1965, signed on behalf of the United States on Sept. 28, 1966, entered into force on Jan. 4, 1969 (S. Ex. C, 95th Cong., 2d sess. (1978)), and the American Convention on Human Rights, done at San Jose, Costa Rica, Nov. 22, 1969, signed on behalf of the United States on June 1, 1977, entered into force, July 18, 1978 (S. Ex. F, 95th Cong., 2d sess. (1978)).

On Feb. 19, 1986, by a vote of 83 to 11, with 6 Senators absent and not voting, the U.S. Senate gave its advice and consent to ratification of the Genocide Convention, subject to two reservations, five understandings, and one declaration. Cong. Rec., Vol. 132, No. 15 (daily ed. Feb. 19, 1986), pp. S1377-S1378.

See, further, the 1978 Digest, pp. 440-464, and the 1979 Digest, pp. 481-500.

Following the receipt of information through the Government of the Federal Republic of Germany on September 9, 1980, that the Iranian Government wished to open discussions to settle the hostage crisis, and the announcement on September 12, 1980, by the Ayatollah Khomeini of the Iranian conditions for releasing the hostages ("the return of the deposed Shah's wealth and the cancellation of all the U.S. claims against Iran, a guarantee of no U.S. military and political interventions in Iran and the freeing of all our investments"), Attorney General Benjamin R. Civiletti requested the views of the Office of Legal Counsel of the Department of Justice concerning the President's power to settle the current crisis with Iran without the enactment of additional legislation.

In a memorandum dated September 16, 1980, Assistant Attorney General John M. Harmon concluded that the President had the power under the Constitution and under existing statutes to enter into an agreement with Iran settling the principal outstanding issues and to implement the agreement in an effective fashion.

Mr. Harmon's discussion of the President's power to settle American claims against Iran by executive agreement follows:

I. Settlement of American Claims Against Iran
by Executive Agreement

A. Presidential Power

The authority of the President to enter executive agreements with other nations in order to settle claims has been explicitly upheld by the Supreme Court. United States v. Belmont, 301 U.S. 324, 330-31 (1937); United States v. Pink, 315 U.S. 203 (1942) ("That the President's control of foreign relations includes the settlement of claims is indisputable." Frankfurter, J., concurring, 315 U.S. at 240.); see also Restatement (Second) of Foreign Relations Law §213 (1965). Belmont and Pink upheld the Litvinov Assignment, by which outstanding Soviet claims were assigned to the United States by a simple exchange of letters between the President and the Soviet Foreign Minister. Both cases emphasized the Executive's exclusive constitutional power to recognize foreign

governments and to normalize diplomatic relations with them, and viewed claims settlements as necessary incidents of the Executive's foreign relations power. See generally United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).

Although the President's constitutional powers almost certainly suffice to authorize an executive agreement with Iran that would take an assignment of some blocked assets and return others, support may be drawn as well from the President's statutory power under IEEPA [International Emergency Economic Powers Act]. That statute, which authorizes the current blocking of Iranian assets, was drafted in explicit recognition that the blocking of assets could have as a primary purpose their preservation for later claims settlement. H.R. Rep. No. 459, 95th Cong., 1st Sess. 17 (1977); S. Rep. No. 466, 95th Cong., 1st Sess. 6 (1977). Thus, IEEPA's § 1706(a)(1) authorizes the continuation of controls after the underlying emergency has ended, where "necessary on account of claims involving such country or its nationals." The need to provide a means for orderly termination of a blocking of assets once the emergency has passed implies Presidential power to resolve the plethora of claims that will invariably arise.

Historical practice reflects the existence of Presidential power to settle claims. While claims settlements have often been concluded by treaty or convention, historical examples abound of settlements through executive agreement. Numerous lump-sum agreements have settled claims of American nationals against foreign nations. See, e.g. Claims Settlement Agreement, July 16, 1960, United States-Poland, 11 U.S.T. 1953, TIAS No. 4545; Claims Settlement Agreement, July 19, 1948, United StatesYugoslavia, 62 Stat. 2658, TIAS No. 1803. History also provides numerous examples of claims settlements through executive agreements that establish international arbitrations rather than provide a lump sum. See, generally, W. McClure, International Executive Agreements 52-56 (1941). In 1935, a congressional study identified 40 arbitration agreements entered into by the Executive between 1842 and 1931 which were not submitted to the Senate for advice and consent. 79 Cong. Rec. 969-971 (1935).1

1 We perceive no reason to believe that passage of the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1602 et seq., was in any way intended to limit the established constitutional power of the President to settle claims, or in any way to alter the substantive law of liability. 1975 State Dept. Digest of U.S. Practice in Int'l Law 353.

Dept. of State File No. P85 0118-1016; Ops. Off. Legal Counsel, Vol. 4A (1985), pp. 248, 249-250.

Assistant Attorney General Harmon transmitted the memorandum, ante, jointly to Robert Carswell, Deputy Secretary of the Treasury, and Roberts B. Owen, Legal Adviser of the Department of State, under cover of a memorandum dated Sept. 16, 1980. Dept. of State File No. P85 0118-1139.