TREATIES AND EXECUTIVE AGREEMENTS TUESDAY, MARCH 10, 1953 UNITED STATES SENATE, SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY, Washington, D. C. The subcommittee met at 10 a. m., pursuant to recess, in room 457, Senate Office Building, Hon. William Langer (chairman of the committee) presiding. Present: Senator Langer. Present also: Wayne H. Smithey, subcommittee counsel. The CHAIRMAN. The committee will come to order. Will you call your first witness? Mr. SMITHEY. The first witness this morning is from the American Association of University Women, but before we proceed with the testimony of this witness the subcommittee has received a statement from the Congress of Industrial Organizations, which I submit, sir, and ask that it be included in the record. The CHAIRMAN. It will be filed. (The statement referred to is as follows:) Hon. WILLIAM LANGER, CONGRESS OF INDUSTRIAL ORGANIZATIONS, Chairman, Senate Judiciary Committee, Senate Office Building, Washington, D. C. DEAR SENATOR LANGER: The Congress of Industrial Organizations wishes to register its opposition to S. J. Res. 1, known as the Bricker amendment. We believe that it seriously hamstrings American efforts in the conduct of our foreign affairs; that it will negate the role of the United States within the United Nations and its specialized agencies, and through international negotiations to increase the security, the material well-being and the rights of individuals throughout the world. The first section of the proposed amendment states that "a provision of a treaty which denies or abridges any right enumerated in this Constitution shall not be of any force or effect." In our opinion, this provision is entirely unnecessary for the Supreme Court of the United States has clearly indicated that no treaty can authorize what the Constitution forbids. The second section would prevent the United States from making various treaties and international arrangements through the United Nations which this country, in the past, considered highly advantageous to make. Here, too, the existing constitutional machinery provides adequate restraints against the makcan refuse to sign it. If he does sign it, its ratification can be killed by one-third of the Senate plus one. The Senate, moreover, can consent to a limited ratification and reject those parts considered undesirable. The third and fourth sections which deal with the enactment of legislation to make treaties effective in internal law, and with executive agreements, would seriously hamper our foreign relations during a time of peace and divide us from our allies in wartime. We feel that these amendments would not only render the President and Senate incapable of protecting American interests, but provisions of these proposed Under our constitutional system, the rule is that ratified treaties and international covenants or conventions may supersede a prior act of Congress, thus possibly affecting domestic law, and an act of Congress may supersede a prior treaty (The Cherokee Tobacco, 11 Wall. 621; Ward v. Race Horse, 163 U. S. 504; Thomas v. Gay, 169 U. S. 264). The rule with respect to State laws is essentially the same as the case of a Federal statute. Thus, a treaty will supersede and render nugatory all conflicting provisions of prior State laws or State constitutions, "and the judges in every State shall be bound thereby." This applies whether the State statute or constitutional provisions were enacted or adopted prior or subsequently to the ratification of the treaty. (U. S. v. Belmont, 301 U. S. 324; Asakura v. Seattle, 265 U. S. 332; Missouri v. Holland, 252 U. S. 416). It will thus be seen that treaties and other international covenants and conventions may override a substantial amount of domestic legislation which is deemed or found to be in conflict with such international agreements. This thereby results in lawmaking by treaty. Our concern in this matters stems in part from a number of multilateral international conventions adopted by the International Labor Organization. Several of such conventions have also been submitted to the Senate for ratification or other appropriate action. It is generally conceded that such "conventions," once ratified by the Senate, are "treaties" within the meaning of that word in its constitutional sense. (See U. S. v. Belmont, supra; Bocardi Corp. v. Domenech, 311 U. S. 150.) An examination of some of these conventions will indicate that ratification by the Senate could raise serious questions of constitutional law with respect to existing Federal and State labor legislation. ILO Convention No. 87 deals with freedom of association and protection of the right to organize. This convention contains many ambiguities which could result in possible conflict with the Labor-Management Relations Act, and also with numerous State statutes and constitutional provisions on labor relations. Thus, that convention provides that public authorities shall refrain from any interference which would restrict employee organizations, activities, or programs or impede "the lawful exercise thereof." In article 8 it is also stated that worker organizations "shall respect the law of the land" which, however, "shall not be such as to impair *** the guaranties provided for in this convention.” In this situation it is not improbable that labor organizations would contend that State law prohibiting or punishing mass picketing or coercive conduct of any kind was void by operation of the guaranties of the "treaty" and therefore the State did not have jurisdiction over it. It could also be contended that any Federal or State law which might "impair" the guaranties of that convention need not be "respected." Likewise, it is noted that article 3 of ILO Convention No. 87 guarantees workers' organizations "full freedom" to elect their representatives without interference from public authorities. Here again it might be contended that the anti-Communist affidavit provisions of LMRA would constitute such an interference, and that thereby that section of the Federal statute had been superseded by a treaty. We also wish to call your attention to ILO Convention No. 98, entitled "Application of the Principles of the Right to Organize and to Bargain Collectively,” which was opposed by the United States employer delegation on the ground that "it was a one-sided international document quite similar in principle to the Wagner Act in our own country and allowing full leeway in the international field to use of the closed shop in opposition to the rule under our own TaftHartley Act." The employer delegation objected to the refusal of the ILO to protect employees in their “right to refrain” from concerted activities as provided in section 7 of LMRA. Also, with respect to this convention, it could be contended that its failure to impose any responsibilities upon labor organizations would have the effect of superseding, and thus nullifying, part or perhaps all of the union unfair labor practices embodied in section 8 (b) of the Taft-Hartley Act. If such a contention was upheld by the courts, existing statutory protections against labor-union coercion of employees and against secondary boycotts, as well as the requirement that unions bargain in good faith, might be superseded or seriously restricted. Moreover, none of the terms used in convention No. 98 are defined. Consequently, it is practically impossible to foretell what meaning could or would be given to such phrases as "acts of antiunion discrimination," "cause the dismissal of or otherwise prejudice a worker," "adequate protection against acts of interfer ence." etc. This uncertainty could only lead to an untold amount of endless litigation in the courts. While endeavoring not to burden the committee, we feel that one other ILO convention should be briefly brought to your attention. That is ILO Convention No. 94 dealing with labor clauses in public contracts, which would seem to contemplate an international Walsh-Healey Act. However, many of the provisions of this convention go far beyond the contract stipulation provisions of our Federal statute. Thus, article 2 of this convention provides that contracts of "public authorities" (which could include Federal, State, and local contracting agencies) should include clauses "ensuring to the workers concerned wages (including allowances), hours of work, and other conditions of labor" which are not less favorable than those established for work of the same character in the trade or industry and in the district where the work is carried on, as have been established by collective-bargaining agreement in the industry, by arbitration award, or by national law or regulation. Thus, the convention would require public contracts to contain not only the most favorable clauses regarding wages, hours, and other conditions of employment that a labor organization could obtain from practically any source, but another article of that same convention authorizes the "competent authority" to "take adequate measures to ensure fair and reasonable conditions of health, safety, and welfare of the workers concerned." [Emphasis added.] This could open up a whole field of public-welfare grants to workers, far beyond anything we have in this country. This résumé of the scope and nature of the conventions of the ILO clearly indicates how their ratification could lead to remaking internal law in the United States through the treaty process. In so doing, these conventions would supersede and nullify a considerable part of Federal and State labor legislation insofar as the conventions were in conflict with such laws. However, as pointed out above, because of the broad and ambiguous language used in these conventions, the many questions as to possible conflict would necessitate endless litigation through the courts. 2. Power of Federal Government would be extended over matters essentially within the domestic jurisdiction of the States The subject matters over which Congress has power to legislate under its constitutional delegated powers are set out in section 8 of article I of the Constitution. Federal legislation within those powers is, under article VI, the "supreme law of the land," and obviously any conflicting State legislation must yield. In those fields Congress must be the judge of the necessity and extent for Federal action. When it has acted in detail, the States are foreclosed from further legislation with respect to such matters. In that regard Congress has preempted the field from State action. However, congressional preemption may also arise in another way, as indicated by the decision of the Supreme Court in Missouri v. Holland (252 U. S. 416 (1921)). In that case, it will be recalled, Congress had passed a statute regulating the shooting of migratory birds. Lower Federal courts held this act unconstitutional as not within the powers delegated to Congress. Thereupon a treaty with Canada was entered into, after which Congress passed another statute on migratory birds. When Missouri sought to enjoin enforcement of the statute, the Supreme Court held that the statute being an implementation of a valid treaty was valid under the "necessary and proper" clause of the Constitution. The opinion by Mr. Justice Holmes stated: * Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention. We do not mean to imply that there are no qualifications to the treaty-making power; but they must be ascertained in a different way. It is obvious that there may be matters of the sharpest exigency for the national well-being that an act of Congress could not deal with, but a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, ‘a power which must belong to and somewhere reside in every civilized government' is not to be found." This decision in effect opened the door for the extension of Federal authority over matters that had been reserved to the States by proclaiming that Congress, in addition to its delegated powers, could legislate under the treaty power. Ac-cordingly, it follows that the ratification of the ILO conventions noted above, or many others pending before the Senate or proposed but not yet submitted for ratification, could extend the power of Congress to legislate on many subjects not now considered within its delegated powers. An examination of the list of ILO conventions that have been adopted (and there are more than 100) would show that this international quasi-legislative organization has drafted many conventions on subjects not within the jurisdiction of Congress. For example, there are ILO conventions on such subjects as private employment agencies, vocational guidance and training, rest periods, annual holidays with pay, maternity protection, pension insurance, etc. It will be seen that ratification of many of this type of international covenants (which are considered treaties under our law), with implementing legislation by Congress, would leave little for the States to pass upon. 3. Domestic lawmaking by treaty bypasses the House of Representatives in the legislative process Under our constitutional system, the treaty making power is vested in the President, with the advice and consent of two-thirds of the Senators present. (Article II, section 2.) This procedure has seemingly worked well in the field of foreign relations for the United States. However, with the extension of the treatymaking power to matters essentially within the domestic jurisdiction of the United States and the States, as noted previously, it follows that this pseudo-lawmaking by treaty disenfranchises 435 of the elected representatives of the people who were chosen specifically to participate in the legislative process. Insofar as such treaties supersede State statutes and constitutions, it also follows that the legislative activity of all such State legislatures is invalidated. 4. Many proposed treaties and international covenants contain provisions which could abridge rights enumerated in the Constitution Whether or not a provision of a treaty could supersede our Constitution has been vigorously argued on both sides by numerous constitutional lawyers and writers. The Supreme Court in the case of Asakura v. Seattle, supra, has stated that the treatymaking power does not extend "so far as to authorize what the Constitution forbids." In the Missouri v. Holland decision, the Court indicated that there was no limit to the treatymaking power unless it is prohibited by the Constitution. Nevertheless, no provision of a treaty has ever been declared unconstitutional. Because there is a conflict in views on this question, it would seem appropriate for the Congress to provide some clarification on this point. This is deemed necessary because of the provisions of certain international covenants that have been promulgated by the United Nations. One of these is the so-called Genocide Convention which is presently before the Senate for ratification. Others are the draft covenant on human rights, which has now been divided into two separate covenants, namely, the draft covenant on civil and political rights and the draft covenant on economics, social, and cultural rights. The Genocide Convention and the covenants on human rights have been the subject of extended discussion in numerous articles in law reviews and the Journal of the American Bar Association and by witnesses before this committee both during your present hearings and those of last year on Senate Joint Resolution 130 (see, for example, 37 A. B. A. J. 739; 38 A. B. A. J. 425 and 467; 14 Univ. of Pittsburgh Law Review 199). These articles and the testimony given raise serious questions as to the possibility that some provisions of those documents might constitute an abridgment or deprivation of constitutional rights. Other critics have maintained that these international agreements would further extend the power of the Federal Government over rights which by the ninth and tenth amendments were retained or reserved "to the States respectively, or to the people." Because these international covenants might endanger our constitutional system, it would seem appropriate for the Congress in considering resolutions on limiting the treatymaking power to include provisions making certain that no provision of a treaty should or could abridge or deny any of the rights or powers enumerated in our Constitution. The National Association of Manufacturers, therefore, supports in principle the objectives sought in the various proposals pending before this committee and urges the Congress to take appropriate steps to limit the treatymaking power so that it will not be used to enact internal or domestic law in the United States or by indirection extend the power of the Federal Government. Mr. SMITHEY. I also have the statement of the Women's International League for Peace and Freedom to be submitted for the record.. The CHAIRMAN. Very well. That may be included. (The statement referred to is as follows:) STATEMENT SUBMITTED BY THE WOMEN'S INTERNATIONAL LEAGUE FOR PEACE AND FREEDOM TO SUBCOMMITTEE No. 1 OF THE SENATE JUDICIARY COMMITTEE ON MARCH 4, 1953 The Women's International League for Peace and Freedom stands opposed to Senate Joint Resolution 1 and similar resolutions in both Houses of Congress. This proposed amendment to the Constitution raises questions of both law and principle; the dangers inherent in the changes advanced by this proposed constitutional amendment are not only to the whole legal framework of this Government as such, but to the very basic rights of individuals, whether they be personal or property rights, as they are guaranteed in our Constitution and as they have developed through the legal processes over the years. Neither can its possible effects on our international relations be estimated, nor the psychological as well as practical effects it would have, nor the threat it could easily pose to the achievement of world peace. We are by no means legal experts; therefore our objections to this resolution must be based on our knowledge of how its passage would effect our own aim and certainly the aim of the United States and of the world-that of promoting, safeguarding, and maintaining a lasting peace and guaranteed freedoms by means of international law. The legal aspects of what is involved in this resolution have been dealt with very ably by the New York City Bar Association; this committee has its report. We appreciate very much what this group has done, and wish to raise these additional points for consideration of this committee. One of the foremost dangers of the proposed amendment lies in its reference to forbidding "any foreign power or international organization to supervise, control, or adjudicate rights of citizens. *** or any other matter essentially within the domestic jurisdiction of the United States." One very vital part of United States foreign policy has been in the form of efforts to find an acceptable plan for limitation of armaments, with the eventual goal in mind of total, world disarmament. This was evidenced first by the Baruch proposal for control of atomic weapons and later in more specific proposals for limitation of armaments with satisfactory safeguards for inspection. President Eisenhower, during the campaign and later in his inaugural address, again reaffirmed this as an essential part of our foreign policy. It is obvious, as reflected in such proposals, that an inspection system would be necessary to the operation of any acceptable pian along these lines. If, however, the proposed amendment were passed, the United States would be in no position to even discuss limitation on armaments; a system of inspection would be out of the question because it would entail representatives of other nations, or of a neutral body, or of the United Nationswhoever the inspectors would be to become involved in a matter which is recognized as essentially domestic in nature. The question at hand is not whether we are going to disarm tomorrow, or even whether disarmament is wise or unwise in the light of present day circumstances, but rather, it is whether we are going to leave the way open for the United States to continue this policy of working on this question, and whether, if any agreement is reached among nations, the United States will be in a position legally to cooperate. It would seem very unwise for the United States at this point to nullify any efforts made in this direction already, and to automatically close the door to further discussion of it. Secondly, we would point out that the psychological repercussions from passage of this amendment would be far reaching. There would undoubtedly be a lack of confidence, if not complete loss of confidence, in international agreements into which the United States entered. Very basically, one of the main objectives of treatymaking is the protection of American citizens abroad. Yet this resolution would, although it goes on that assumption, not be reciprocal in this respect; foreign nationals in this country would not be assured of their rights. Agreements in which the United States was involved affecting economies and monetary standards would be entered into fearfully, distrustfully, and surely less frequently by other nations. Economic insecurity could easily result, affecting the United States as well as other nations, a condition which, as widely recognized, must be avoided in the present day world struggle. To go further, sections 3 and 4 of the resolution necessitates enabling acts by Congress of all treaties and executive agreements, a provision which would very definitely hamper the powers of both the executive and legislative branches. |