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We have, in fact, pledged ourselves, by ratifying the United Nations Charter, to take joint and separate action in cooperation with the United Nations to promote universal respect for, and observance of, human rights and fundamental freedom for all without distinction as to race, sex, language, or religion. (Art. 56). Do we intend to repudiate this pledge!
Section III would do away with the self-executing character of treaties established by article VI of the Constitution. It would mean that after a treaty had become a binding international obligation of the United States, it could not be enforced as law until Congress had acted. Consequently, internationally valid treaties could be violated through the negligence or adverse action of any of the 48 States, or by conflicting provisions in earlier acts of Congress or common law.
I do not believe we should assume this risk of treaty violations. Many countries have adopted our system of making treaties applicable in domestic law as soon as they come into force internationally. Other States regularly postpone ratification until domestic legislation has been passed assuring their legal application.
Countries with a parliamentary form of government, like Great Britain, are not faced by this problem to the same degree as are governments of checks and balances, like ours, because the executive which makes the treaty is always assured of a majority in Parliament to pass whatever implementing legislation my be necessary (Preurs, The Execution of Treaty Obligations Through Internal Law, Proceedings American Society of International Law, 1951, p. 82 ff.).
In our form of government the supremacy clause has been an important protection of the Nation's good faith in treaty observance and ought not to be changed.
Section IV of the proposal is ambiguous in providing that executive agreements shall be madeOnly in the manner and to the extent to be provided by law.
If the word "law" includes the Constitution and treaties as it does under article VI of the Constitution, then this phrase would make no change in the present situation because executive agreements have always been made in accordance with one or the other of these types of law. The President can only make them within the orbit of his powers directly under the Constitution or as authorized by treaties or by acts of Congress.
If, on the other hand, the word "laws” refers only to "acts of Congress," it would seriously hamper the President in the exercise of his powers as Commander in Chief to make military agreements, his lowers as Chief Executive to make administrative agreements to maintain our international obligations, and his diplomatic powers to make agreements upon foreign-policy objectives.
In my opinion, restrictions upon the making of executive agreements are unnecessary and would seriously hamper the conduct of our foreign relations. The numerous agreements dealing with defense arrangements, mutual assistance, technical aid, exchange of persons, reciprocal trade, exchange stabilization, et cetera, require flexibility and expedition inconsistent with the treatymaking process and inconsistent with congressional action, unless, indeed, blanket powers are delegated.
During our history the treatymaking power has frequently been under discussion, but usually it has been thought that it was too difficult rather than too easy for the Government to make treaties.
The two-thirds rule in the Senate has often been criticized because it establishes minority control and it has been suggested that a major
a ity of both Houses of Congress would be preferable.
The present proposal, however, moves in a different direction and would make it more difficult and in many cases impossible to make treaties. I consider the proposal unnecessary, ambiguous, and dangerous.
What is needed is a strengthening of the capacity of the United States to act wisely and effectively in international affairs, not hampering restrictions which will suggest to the other nations that the Congress and the States distrust the President, the Senate, and public opinion.
Let us have confidence in our country and our Constitution and not tell the world that we are afraid to accept the responsibilities which have been thrust upon us. Let us observe the principles which are our heritage and employ the capacities which are the fruits of our institutions in the long and difficult task of developing in cooperation with other nations a world in which we and they can live in peace and security, thus giving reason and justice an opportunity to survive in our shrinking world. We cannot escape history.
The CHAIRMAN. Senator Kefauver, do you have any questions?
Senator KEFAUVER. Dr. Wright, I have enjoyed your statement very much. I take it that you feel that section 1 is already the law of the land, that we cannot make any treaty which violates the Constitution, and therefore there is no use creating a controversy about it; is that correct!
Professor Wright. That is correct. It seems to me that the treatymaking power is subordinate to the Constitution, but I should make this addition, which I think has confused some people: There is no doubt that the treatymaking power is broader than the explicitly delegated legislative powers of Congress. It seems to be quite obvious that the treatymaking power can encroach upon the normal powers of the State. As I pointed out, the very object of making commercial treaties is to get rights of property holding abroad for American citizens. Obviously, we cannot do that unless we give similar rights to foreign citizens in the United States. That is a matter that is normally within the legislative competence of the States. The Congress could not give a Frenchman the right to acquire property in the State of Louisiana unless it was in support of a treaty. So it is quite obvious that the treatymaking power given by the Constitution was intended to include matters which are not within the normal legislative powers of Congress.
Senator KEFAUVER. Do you not feel that in section 2 the language, “or any other matter essentially within the domestic jurisdiction of the United States," might almost abolish the subject matter that could be brought into treaties, and in any event would lead to endless litigation as to what is meant by “essentially within the domestic jurisdiction of the United States ?
Professor Wright. Yes; that is my opinion, Senator Kefauver. Senator Dirksen had a good deal to say about the use of the word "domestic" jurisdiction in the United Nations Charter. I would like
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 treaty making 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.
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 impressjons 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 mp 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 tandpatter 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.