injuries and property, damage inflicted on both sides of the border by authorities of one Government or the other. Senator BRICKER. Is that not clearly of international character? Attorney General BROWNELL. It certainly affects the rights of citizens against the United States. Senator BRICKER. And against the foreign government. Senator BRICKER. That certainly makes it of international character and not domestic. Attorney General BROWNELL. You say not only in domestic jurisdiction will you adjudicate rights of citizens of the United States within the United States. That is part of the adjudication, as I see it. The compiler's note to the Convention shows that the Commission concluded its work in 1876 rendering awards in favor of the United States citizens of over $4 million as against aproximately $150,000 in favor of Mexican citizens.46 Were it in force, the proposed constitutional provision might have prevented or jeopardized American participation in international arbitration of claims of American citizens or of disputes involving the domestic jurisdiction, either on grounds that the arbitrators constitute an international commission or organization, or that foreign governments are participants in the choice of the arbitrators who variously supervise or control or adjudicate rights involved. A current example is the authorization in the President to conclude and give effect to agreements for the settlement of intercustodial conflicts involving enemy property. These agreements, such as the Brussels Agreement of 1947 to which the United States is party with six other countries, involve among others the property rights of Americans by reason of their joint ownership of certain enemy property or of corporate stock controlling ownership of such property. In the event of à dispute, a conciliator from the panel of 7 elected by the 7 member countries shall formulate a solution which is binding.48 49 47 An example of an arbitration which might impinge on the domestic jurisdiction is contained in section 21 of the United Nations Headquarters Agreement, concerning the headquarters located in this country and providing for arbitration of disputes respecting the interpretation and application of the agreement. The proposed constitutional provision would seriously affect boundary arrangements, past and present, with our northern and southern neighbors. It could invalidate the existing 1909 Boundary Treaty Between the United States and Canada.50 insofar as articles III, IV, and VIII of the agreement give to the International Joint Commission (3 American and 3 Canadian members) ultimate approving power over uses, obstructions, or diversions of waters on either side of the boundary line. The provisions that no treaty (or other international agreement) shall authorize or permit any foreign power or international organization to supervise, control, or adjudicate any matter essentially within the domestic jurisdiction of the United States may be particularly 1 Malloy, Treaties, 1131. 47 64 Stat. 1079. 4 See article 37A of the Brussels Agreement, and the background described in H. Rept. 2770, 81st Cong., Aug. 1, 1950. 40 61 Stat. 756, 764. 60 36 Stat. 2448, T. S. 548. troublesome. Its alleged purpose is to "make effective, insofar as the United States in concerned, the prohibition of article 2, paragraph 7, of the U. N. Charter forbidding U. N. intervention in purely domestic matters." 51 Article 2, paragraph 7, of the United Nations Charter now provides Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State or shall require the members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under chapter VII. Laying aside any question of conflict between the proposed constitutional amendment and the latter part of the quoted provision regarding chapter VII (which deals with Security Council action in respect of threats to the peace, breaches of the peace, and acts of aggression), it should be observed that this provision of the Charter is part of our law,52 and is already an existing protection if needed against the United Nations. Elsewhere, when it was felt that such a safeguard was needed against a feared encroachment, it was included in the particular agreement, such as the United States acceptance of the so-called compulsory jurisdiction of the International Court of Justice under article 36, paragraph 2, of the Statute of the Court.53 The acceptance (pursuant to S. Res. of August 2, 1946) 54 contains the reservation that the United States declaration shall not apply to "disputes with regard to matters which are essentially within the domestic jurisdiction of the United States of America as determined by the United States of America." 55 The difficulty in freezing any such provision into the Constitution is that it becomes completely inflexible without any possibility of waiver by agreement when desirable. This would be true not only for the United Nations but regarding any other problem we may have with a foreign government or international organization. For example, in the past some of our consular conventions have allowed foreign consular officials certain judicial powers. The convention with France of 1788 56 empowered French consuls in the United States to adjudicate all disputes arising within the United States between subjects of France (art. 12) and to exercise police powers over French vessels (art. 8). In Wildenhus's Case 57 the Supreme Court said that if such a treaty gave a consular official exclusive jurisdiction over a homicide committeed on a vessel in port, the treaty would preclude prosecution for the offense by a State court; it held, however, that the treaty in question did not preclude prosecution by the State of New Jersey. It might be observed in this connection that the United States has treaties with other countries giving its consular officials judicial powers abroad which are regarded of great value.5 58 Only recently the International Court of Justice had occasion to piss upon the extent af American consular court jurisdiction in Morocco, France v. United States of America, Case Concerning Rights of Nationals of the United States of America in Morocco, Judgment of August 27. 1952; I. C. J. Reports 1952, p. 176. The proposed amendment might throw doubt upon our existing extradition treaties, or the extent to which we can grant extradition. To date the power to enter such treaties has never been questioned.59 And it is well settled that, where the treaty so provides, an American citizen can be lawfully extradited to some other country to be tried in accordance with the laws of that country for an offense committed there.60 The host of agreements to which the United States has subscribed in the past in becoming a member of the many international organizations (such as the International Civil Aviation Organization, the International Telecommunications Union, the Universal Postal Union, the World Health Organization, the International Bank, and the International Fund, to mention but a few), all may require examination to ascertain the extent to which any such treaties or international agreements permit the international organization to supervise, control, or adjudicate a matter or matters "essentially within the domestic jurisdiction of the United States," let alone the rights of citizens of the United States. We can suppose that in a great measure this has been avoided by the several charters and agreements of the past. Nevertheless, some of the useful and necessary techniques adopted would seem to infringe the constitutional amendment proposed, such as the narcotic-drug protocol of 1948,1 under article 1 of which the World Health Organization may add, to the list of drugs capable of producing addiction, newly discovered drugs or compounds or snythetics; whereupon their manufacture and distribution is to be limited by the member states in accordance with the 1931 convention and 1946 protocol. Senator BRICKER. That is clearly interstate commerce and foreign commerce. Attorney General BROWNELL. It affects the rights of citizens of the United States. Senator BRICKER. It does not affect by this amendment interstate commerce. Attorney General BROWNELL. It affects it. I raised the question. which I deemed to be my obligation by reason of the position I hold, that we ought to study this language with respect to all of these important concords and protocols and treaties to which we are a party to see if it does not change the meaning of them or make it impossible to enter into similar agreements in the future. Senator WATKINS. Have you studied the language in Senate Joint Resolution 43 with respect to the same matters? Attorney General BROWNELL. Yes. Senator WATKINS. I think that draft avoids the matter you are talking about now. At least that is the intention. Attorney General BROWNELL. I was addressing myself primarily to Senate Joint Resolution 1. Senator WATKINS. Have you studied Senate Joint Resolution 43? Attorney General BROWNELL. Yes. Senator WATKINS. Do you think the same objection applies to the language in Senate Joint Resolution 43 as in Senate Joint Resolution 59 Holmes v. Jennison, 14 Pet. 540, 569-570, 586, 588 (1840); Matter of Metzger, 5 How. 176, 187-188 (1847); Factor v. Laubenheimer, 290 U. S. 276 (1933). Neely v. Henkel (No. 1), 180 U. S. 109, 123 (1901); Charlton v. Kelly, 229 U. S. 447, 465-469 (1913): Valentine v. U. S. ex rel. Neidecker, 299 U. S. 5, 7 (1936). T. I. A. S. 2308. 1 I am not admitting your objections are valid but I am wondering if you have the same objection to the language in Senate Joint Resolution 43. Attorney General BROWNELL. Will you read that particular language to which you have reference? Senator WATKINS. It is stated another way: A provision of a treaty which conflicts with any provision of this Constitution shall not be of any force or effect. A treaty shall become effective as internal law of the United States only through legislation which would be valid in the absence of treaty. Substitute agreements shall be subject to regulation of the Congress and to the limitations imposed on the treaty by this article. Attorney General BROWNELL. That of course is much more restrictive on the President and the Senate than Senate Joint Resolution 1. Senator WATKINS. It does not eliminate any rights we have as we understand the Constitution. Attorney General BROWNELL. I am glad of that comment. Mr. SMITHEY. Before you leave the matter of extradition, may we address ourselves to that for a moment? When you say the proposed amendment might throw doubt on existing extradition treaties or the extent to which we can grant extradition, do you doubt the United States has power through its Congress to pass a statute permitting extradition irrespective of treaties? Attorney General BROWNELL. My offhand reaction to that is that it would not do much good to do that unless we had the agreement of the other nations which could only be done by negotiations with the other nations. Mr. SMITHEY. The point is if there was a representation made to this country by another country to extradite an individual, it would be perfectly possible under our constitutional processes, irrespective of the treaty, would it not? Attorney General BROWNELL. In the mixed matter of legislative and executive powers, and I would hesitate to unbalance the traditional separation of powers of two branches in that way. I think it needs close study. Mr. SMITHEY. I might cite to you, sir, at that point an article by Mr. Finch, Mr. George Finch, of the American Bar Association, appearing in the American Bar Journal. The title of that article is, "The Treaty Clause Amendment, the Case for the Association," in which he addresses himself to that very point. Attorney General BROWNELL. Yes, sir. I can close this section 2 discussion very briefly, Mr. Chairman. I do so with the following: One cannot help but speculate upon what such a constitutional amendment would do to any efforts of the United States to achieve genuine international control in important fields relating to the peace and safety of the world. For example, the United States proposal of 1946, rejected by the Soviet Union, of an international agency for the control and development of atomic energy, included broad powers in the international agency for the management and ownership of all atomic activities potentially dangerous to world security, as well as power to control, inspect, and license all other atomic activities.62 See International Control of Atomic Energy, Growth of a Policy, State Department Publication 2702 (1946); Policy at the Crossroads, State Department Publication 3161 (1948). The system of international inspection, which lay at the heart of the plan, clearly would conflict with the proposed constitutional amend ment. The point need not be belabored by reciting other like problems that must one day be the subject of international solution. In their regard we can ill afford to immobilize the one great peacetime weapon this country possesses, namely, the treatymaking power. Senate Joint Resolution 1 provides: SEC. 3. A treaty shall become effective as internal law in the United States only through the enactment of appropriate legislation by the Congress. [On this subject, S. J. R es. 43 provides: "A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty."] The purpose of this provision is to prevent treaties, which are intended to be and capable of being self-executing, from becoming selfexecuting; and to require, in all cases, that a treaty cannot become effective as internal law in the United States except through the enactment of legislation by the Congress. Senate Joint Resolution 43, the American Bar Association proposal, would go even further and would prevent a treaty from becoming internal law except through legislation which Congress could validly enact under its powers in the absence of the treaty, thereby limiting the scope or subject matter of treaties to those matters which are within the enumerated legislative powers of the Congress. The solution, evolved by the Constitutional Convention of 1787, of placing treaty making in the President with the advice and consent of two-thirds of the Senators present, was the result of a great deal of thought, discussion, and compromise. John Jay, in No. 64 of The Federalist, and Alexander Hamilton in No. 75, have set forth the reasons for placing the treaty power in the President and two-thirds of the Senate. Hamilton described it is "one of the best digested and most unexceptionable parts" of the constitutional plan. Because the capacity and prestige of the Senate in treatymaking and treaty-law-making is under challenge by the present proposal for amendment, I would urge every Member of the Senate to review carefully these two essays by Jay and Hamilton, among others. I would call attention especially to the following paragraph from Jay's paper, which goes directly to the point proposed by this amendment: Some are displeased * * * because, as the treaties, when made, are to have the force of laws, they should be made only by men invested with legislative authority. These gentlemen seem not to consider that the judgments of our courts, and the commissions constitutionally given by our governor, are as valid and as binding on all persons whom they concern, as the laws passed by our legislature. All constitutional acts of power, whether in the executive or in the judicial department, have as much legal validity and obligation as if they proceeded from the legislature; and therefore, whatever name be given to the power of making treaties, or however obligatory they may be when made, certain it is, that the people may, with much propriety, commit the power to a distinct body from the legislature, the executive, or the judicial. It surely does not follow, that because they have given the power of making laws to the legislature, that therefore they should likewise give them the power to do every other act of sovereignty by which the citizens are to be bound and affected."3 Senator WATKINS. Could the Congress pass a law, not amending a treaty, but abrogating a treaty? 63 The Federalist, No. 64. |