into a treaty there, would we contend that it was impossible? Could they contend it was impossible on our part if we were to install a similar system?

Professor OLIVER. No; they could not contend it was impossible, but I think a Canadian who follows American constitutional history and is mindful of the practical point that I have mentioned, would wonder whether the negotiators could really produce. When I was negotiating with the British or with the Canadians, we did not worry about whether they could produce on their commitment. We knew if they did not produce, the government would fall and everybody would have to go to the hustings. That has been made before this committee many times. It is the basic assurance in the case of the British ministerial type of government that the commitments made by the chief of state, the King and Council, will be carried out by legislation, if necessary, within the country. In our own case my point is precisely that the Canadian would not be certain. He would have to wait until the process of ratification had gone through, and he would have to wait an additional period of time while the legislative process was attended to, with hearings before-let us think how many committees it might be. On a treaty with Canada there would be at least two Senate and two House committees involved, with hearings of this sort at this hour, no doubt.

It is the practical point, that under this heading, Senate Joint Resolution 1 makes it harder to carry on international business. It is with respect to that that I would rest my case on that point.

The second point, Mr. Chairman, is that Senate Joint Resolution 1 is opposed to the rule of law in the community of nations. I hope I make myself clear on this. By "rule of law" I mean the subjection of the national will in specific instances where the law of nations governs, to that law. I think the rule of law is in our national interest. I am sorry to report that there is a school of political thought in the United States, academic thought, that tends to sneer at the concept of the role of law in the international community, and I have cited one of my minor efforts to come to grips with or to rejoin to that particular attitude. It seems to me that the concept of the rule of law is obviously in the interest of the most "have" country in the world. We are the most "have" in respect of sources of material satisfaction, and we are rapidly coming to be the most "have" nation with respect to cultural attainments as well.

Law is a protector and conservator of values, and even in that way we can agree that it is in our national interest, but it is also in our national interest in that we are facing the challenge of responsibility in the democratic world. The interests of the democratic world are served by law, and to be served by law, nations and individuals must live under that law.

I go on to point out that I am not advocating any major cessions of sovereignty to any supernational organization whatever. This is my attitude on the domestic question which has been so learnedly discussed. Regardless of what it means, which is confused, in my opinion, to include that in a constitutional amendment is to write into every negotiation between the United States and every other country, as I see it, an automatic escape hatch for the United States, because regardless of what courts may have said about the meaning of the

phrase, "essentially within the domestic jurisdiction," we all know that outside a small ambit or core of well understood and obvious meaning, this is a dialectical term, a term that diplomats use when they want to avoid consideration or discussion of some particular problem.

All you have to do is to consider the Indonesian case at the United Nations, where the Dutch came in and said that the fighting going on betwen the Indonesians and the Dutch could not be taken up by the Security Council. Oh, no; that was a domestic question. Obviously, the Security Council decided, including the United States, which took a strong position, on that, that where you have a threat to peace and security, when a war is actually going on, it is not a domestic question.

I mention that merely to show that the term is one of the semantic terms that you pick up and use when you want to cloud an obligation or the possibility of an obligation. That is why I object to it, principally in this context.

My final point, Mr. Chairman-to my way of thinking, the major one is that Senate Joint Resolution 1 shifts responsibility for foreign affairs operations to Congress. There is no question, to my way of thinking, but that section 4 gives the Congress from time to time, as it sees fit, to decide the scope of the Presidential power in dealing with other countries. It reads:

All executive or other agreements *** shall be made only in the manner and to the extent to be prescribed by law.

Mr. SMITHEY. You do not think it is ambiguous, then?

Professor OLIVER. I do not think it is ambiguous. I think it means that the 85th Congress could say that the scope of Presidential power is this [indicating], or the 85th Congress could say that it is that [indicating. I submit that to give that power to Congress is essentially to change the structure of our Government as it was worked out by the Founding Fathers. My view is that the gentlemen at Philadelphia made this choice on a calculated risk basis. They knew that a President might become a tyrant. They also knew that the State of Virginia was already causing trouble about carrying out the treaty of peace between the United States and Great Britain. They had to make some sort of decision. They had to put the responsibility somewhere, and they put it with the President. In my opinion, they put it well with him, in large part thanks to the corrections through the system of checks and balances that they wrote in, familiar to all of us and enumerated again on page 9 of my statement.

What I wanted to add was that my own experience in the Department of State as a worker there left me with the following additional impressions on this point, which, for the benefit of the committee, I have enumerated on pages 9 and 10.

The day-to-day conduct of foreign affairs requires many agreements with foreign entities. We know that all, or even a substantial part, of them cannot come to Congress. Let us think about the legislation that is going to implement section 4. What will it say? Where will it draw the line? Will it be able to draw the line so that, if I were a division chief in the Department of State, I could decide that this is Something I can do, and that is something I cannot do? Would it guide the Secretary of State? Would it guide the Senate?

Can you

reports and the telegrams, put out the fires, do the planning, and in general organize itself for and accept day in and day out that awful, fateful responsibility that is now on our Chief Executive, where the Founding Fathers placed it? Are we to develop in Congress a prime minister for foreign affairs and make the President an impotent figurehead? Only, gentlemen, if the Congress and the legislatures of the several States are prepared to face honestly and prayerfully so revoluationary a change in our Government should Senate Joint Resolution 1 be further favorably considered.

I thank you, Mr. Chairman.

(Professor Oliver's prepared statement follows:)

STATEMENT OF COVEY T. OLIVER, PROFESSOR OF INTERNATIONAL LAW, BERKELEY,

CALIF.

Mr. Chairman and gentlemen of the Subcommittee on the Judiciary, my name is Covey Thomas Oliver. I appear in a personal capacity, desirous of exercising my privilege as a citizen, to express opposition to Senate Joint Resolution 1. However, as chairman of the Northern California Association for the United Nations and as a frequent participant in adult, extramural discussions of foreign affairs topics in both northern and southern California, I believe the position I shall attempt to present is shared by many thinking people on the west coast. As a rule we of the West are not in a position to take as much advantage as we should like of opportunities to make our views known to our Federal lawmakers in person; hence this courtesy is all the more appreciated by me. To you, gentlemen, my sincere thanks.

I offer the following as my qualifications: I am a member of the State Bar of Texas (my native State), of the American Bar Association and of its section on international and comparative law. I am a professor of law at the University of California (Berkeley), where I teach courses in international law and related matters in the law school and, on occasion, in the department of political science. I also teach trusts and estate and gift taxation. I grew up on the TexasMexican border, where I learned to speak Spanish from the ranch hands before uttering any words in my own ancestral tongue. I am proud to say that in the city of Laredo, Tex., where I lived as a boy, Mexican-Americans had full civic rights and peoples of different ethnic backgrounds lived well togethersituations not then generally true throughout the State. I had an opportunity from earliest life to appreciate the great importance to individual Americans and to American interests of adequate, effective international agreements between our country and others in which Americans have interests. My proficiency in Spanish resulted in my being sent to Spain as special assistant to Ambassador Carlton J. H. Hayes to carry on certain economic warfare and related activities from November 1942 until the liberation of France in September 1944.

Thereafter until the fall of 1949 when I returned to my prewar career, I was an officer of the Department of State, United States of America, participating principally in the negotiation of the economic provisions of the peace treaties with Italy and the Axis satellites, international agreements on restitution of property looted by the Axis, reparations, compensation, etc. Later, I had experience with agreements regarding the indemnification of American nationals for the nationalization of their interests in certain countries. I was, for instance, the day-to-day negotiator, under the supervision of the then Assistant Secretary of State for Economic Affairs (Dr. Willard Thorp) of the United States-Yugoslav nationalization agreement under which $17 million in gold was handed over by that country in compensation for nationalized American interests. When I left the Department of State, I was Chief of the Division of Economic Property Policy and my job was protecting American interests abroad.

I appear before you, gentlemen, with reference to Joint Resolution 1 as a "stand-patter," as a believer that tried and true methods should not be abandoned for reasons so remote from reality for something untried, unclear and, in my opinion, unworkable, at so dangerous a time in our national history. With reference to Senate Joint Resolution 1, gentlemen, one might paraphrase a great parliamentarian and say "Seldom in human history would so much be risked by so many for so little cause."

I have read the hearings before the subcommittee at the last Congress. I have followed as best I could the presentations to you at this Congress. I do not wish to impose upon your good nature by repeating the detail of what has already been said. Nor should I restate, simply because I am a professor, what more distinguished colleagues have said or will say here today. For the record, let The state that in my opinion Prof. Zechariah Chafee's statement at pages 110-115 of the hearings before the previous subcommittee accurately digests the historical background and highlights the sound reasoning the Founding Fathers applied to the problems of (a) Executive-legislative and (b) Federal-State power relationships in the field of foreign relations and international agreements. Likewise, I accept as correct at almost all points the excellent analysis of the vices of the present resolution presented to you by the Association of the Bar of the City of New York.

It was my thought that perhaps I could be of better use to the committee if I refraine as much as possible from repeating specifics that have already been presented and spent more time on the general implications of the resolution, as I see them in the light of the background I have sketched for you.

But before getting entirely away from specifics, let me state that cursory inquiry and investigation have led me to question the accuracy of the statement made by certain witnesses to the effect that we are unique among nations in giving treaties self-executing effect. Others have pointed out in rejoinder that in Great Britain it is the lack in fact of separate executive and legislative branches, and the absence of a formal, written constitution that gives to the superficial observer a mistaken impression of what actually happens. Without any claims to expertness in matters of comparative law, but merely to suggest that further, precise enquiry might be wise before uncritical acceptance of the thesis alluded to, let me mention a French case my eye fell on recently. It is reported in 1953 Juris Classeur Periodique II, 7379, and it involved a Spaniard named Cot, who with his wife (in typical continental fashion) was running a bakery shop in the south of France. This Cot had come to France in 1924 and had been trying, in vain, for years, to get an identity card as a businessman. Finally he tried too hard and found himself in the toils of French law for baking without the right kind of identity card, as required by the Decree-Law of May 14. 1938. Things looked bad for this small-business man, but a treaty came to his rescue. The court held that under articles 26 and 28 of the French Constitution of 1946, the Franco-Spanish Treaty of January 7, 1862, was superior to the subsequent internal French law and ordered Cot's release. My knowledge of French is not as good as my knowledge of Spanish, and I have not researched this point exhaustively in French law. I only use the case, gentlemen, to suggest that we may not, after all, stand in precarious isolation from all the rest of Christendom on the question whether treaties may be self-executing.

SENATE JOINT RESOLUTION 1 IS BAD FOR AMERICAN INTERNATIONAL ENTERPRISE But the case of small-business man Cot should remind all of us of a case that as a matter of duty we should be interested in. I refer to the case of the American businessman, the American enterprise doing business in foreign countries. As we think of the implications of Senate Joint Resolution No. 1, let us be mindful of our efforts to turn back cruelly delusive communism by promoting investment abroad. Further, even if one does not agree that the positive encouragement of overseas investment is desirable, let him remember that some Americans may want to go overseas anyway, and those Americans are entitled to the best protection that we can give them. It is one of the oldest and proudest functions of our diplomacy to do just this. Will Senate Joint Resolution 1 help or hinder? That is a question for you gentlemen.

Let me take just one practical aspect of this quetsion: we all know that reciprocity is a fact of international life, that we have to give rights (frequently theoretical) to foreigners here in order to obtain corresponding rights for our citizens abroad. At the present time it is possible for the Federal Government to offer reciprocal establishments rights without specific Federal legislation, despite some conflicting State or municipal prohibition. Senate Joint Resolution 1 at section 3 certainly shifts the operation, including its obvious resulting potentialities for headaches and delays and ultimate frustration, onto the shoulders of the Congress. With all deference and respect I suggest that our basic theory of truly representative government would as a result of this have another Sore trial. I am sure the American businessman would have to wait far longer than now to get his reciprocal right, for under Senate Joint Resolution 1 it

would be necessary, not only for the Executive to negotiate the treaty, the Senate to consider it and give its concurrence and the President to promulgate it, but also, the implementing legislation would have to go through both Houses, with hearings by several committees in each House, duplicated testimony, etc., and all this against a delicate background of conflicting interests between diverse geographic points in the country, one or the other of which is going to blame Congress for the result it objects to.

The overall effect is quite predictable: Section 3 tends toward economic isolationism. This is one of those points where we have to make a choice. You do not need an enumeration from me as to what the range of considerations are. Let me just suggest, though, that many of your constituents (as I for one) may believe that in the national interest of our country we must do all possible ***, all procedurally possible, at least ***, to encourage American enterprise to go overseas, particularly into the underdeveloped areas. We cannot equalize advantages throughout the world, of course. We cannot even

do it in our own country. Californians, for instance, know that, despite one system, it is still luckier to live in California than elsewhere. But we also know that out of degradation, out of poverty, and out of the lack of selfrealization there come those individual and national psychological warpings and distortions that have so much to do with the violence and unrest that have taken our youth and our treasure. We also know that it is in our national interest to obtain by international agreement rights outside our borders, not only to sell things, but, perhaps more importantly as our own natural resources are consumed, to get vital primary materials from efficiently developed and managed extractive industries.

SENATE JOINT RESOLUTION 1 IS OPPOSED TO THE RULE OF LAW IN THE COMMUNITY OF NATIONS

The foregoing observations lead to a broader one that really contains the essential objection of many thinking people to Senate Joint Resolution 1. In its language and in its predictable effect this proposal is inimical to the growth and development of the concept of the rule of law in international life. At another place1 I have tried to do my bit to oppose a superficial neo-Machiavellianism which not only blames concepts of law and morality for all the major mistakes of our foreign policy for the past 50 years, but also states (without proof) that the rule of law is not in our national interest. This, I submit, is dangerous, and sophomoric nonsense. "Law," properly and pragmatically considered, is in our national interest. One reason for this is that we are the world's greatest "have" country. Others are that we are among the most democratic and peace-loving of countries. All these interests are served by law. So is the challenge of democratic world leadership, now so clearly our responsibility. To be served by law nations and individuals must live under the law. I am not advocating major cessions of American sovereignty to any external or supranational body. I think under the U. N. Charter there has been only one cession of sovereignty, despite the frantic but vague talk otherwise. That cession is simply this: We, along with every other country, gave up our privilege to use our Armed Forces in an aggressive way *** in a Von Clausewitz, Prussian-Russian way, as simply an extension of a grabbing national policy. I think this cession was in our national interest and that our willingness to fight for the third time in a century against aggression proves this. Additionally, we might have (but so far have not) subjected ourselves on questions purely of international law to the compulsory jurisdiction of the International Court of Justice.

To put now into the Federal Constitution a provision that would prevent for all time any agreement, general or ad hoc, giving an international tribunal power to adjudicate "any matter" we might be interested in, free from the escape hatch "essentially within the domestic jurisdiction of the United States" is to fall far below the present cautious American adherence to the Statute of the International Court of Justice and make virtually impossible American leadership, by precept and example, toward the growth of the role of law in the community of nations. It is known, of course, that the phrase "essentially within the domestic jurisdiction" is a phrase of legal art only with respect to a core of obviously legitimate internal questions. Beyond that it becomes a dialectical device

1 Oliver, Reflections on Two Recent Developments Affecting the Function of Law in the International Community, Texas Law Review, October 1952.