to your problem, Senator, because may I call y statement made by Senator Bricker just this past of the Senate wherein he stated that opponents of s some fantastic fears.

For example, and I am now quoting from Sena Mr. Dana C. Backus testified that section 2 would p Telecommunications Union from allocating radio fre Health Organization from operating quarantine regula national spread of disease. Mr. Backus, however, ment when he said

and here Senator Bricker quotes Mr. Backus "Radio waves and bacteria do not recognize interna Then Senator Bricker continuing:

They are of international concern and would not 1

After going on to discuss Mr. Backus' su mission for the conservation of salmon betw Canada on the west coast would be prevent posing of that for the same reason, Senate

When international boundaries are crossed waves, narcotics, prostitutes, germs, airplanes, o problems arising out of such international travel Then he continues to deal with the qui Senator Bricker says:

In the atomic bomb man has created a we twinkling of an eye. Men live in fear of thi total annihilation increases daily. How I matter essentially within the domestic juris That closes the quotation.

Senator DIRKSEN. All that proves Mr. EDELMAN. I am saying, Sena doing is proposing the insertion o namely, the word "domestic," and t raised as requiring international a say, plainly, that they are interna that puzzles me is, How does the in tion by an amendment of this kin face in any event on such treaties?

Senator DIRKSEN. You are dea four sections to it?

Mr. EDELMAN. Yes.

Senator DIRKSEN. It particul do, I think. If it does not, we for its objective the protection United States. If there is an in the Constitution, it certainly because if you will go back: United Nations Charter, whi that are essentially within tl. matter has not been determi bunal in the United Nationdomestic jurisdiction? We line. We are seeking to di lution such as is proposed a

ent, Senator Dirksen, or Bricker, who seems would all concede we ome, in our view as a hat we want to maintain. aptability of our Governparticularly in the Senate, wing facts of international

g, and that is to gamble on ildren that have come out of

Geneva and elsewhere.

m no more anxious to gamble are, but we cannot assure ourown possible mistakes or miselves a certain amount of capacgestion that some people unfitted preparation of an international a problem of the capabilities and ment.

cessary, it can very well raise quesnot create through the passage of an

hat is sufficient and then you say it is d not have any part of the resolution. t of it.

respect to section 1, I think it is unnecesiy sufficient constitutional doctrine in my I principle that individual rights guarancannot be displaced by treaty.

en you would be sort of indifferent to section To it on the grounds it is not necessary.

reason why I would not be indifferent to it, an analysis of constitutional doctrine by the ted States Supreme Court is a better reliance in Our scheme of government, than the insertion of a ndment which may give rise to every conceivable ation which may require modification or withdrawal that may follow.

ded to conform precisely to an exact synthesis, you Constitutional doctrine, I do not think it is necessary; one of the geniuses of our judicial system and the suOur courts of law is that we live by the common law as

.tute.

DIRKSEN. The Constitution is a flexible document. It has led a good many times since it was first formulated. DELMAN. Senator, I certainly do not qualify as a constituxpert, but I did look over the amendments that have been up to this date, and nowhere did I find an amendment that the structure or scheme of the Government or that modified the ples of separation of the powers of the Government. Such a ge in my view is one that we should be very slow to undertake ause of its myriad possible consequences unless absolute overridnecessity were to be established, and I personally am not satisfied that that has been the case.

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 problemi. 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?
Professor WRIGHT. No; I am not a member of the bar.

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. tion 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.

Sec

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 Marcy 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 amendment 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 citizens 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.