Article XII special procedures for consultation and termination or suspension in case of inability by either party to carry out its obligations under the Agreement. The relevant provisions are in paragraph 2 of Article XII, which reads as follows:

2. (a) The initial term of this Agreement shall be three years, subject to subparagraph (c) of this Article.

(b) If either party encounters or foresees a problem with respect to the application of this Agreement, including a problem concerning its domestic legal authority to carry out any of its obligations under this Agreement, such party shall request immediate consultations with the other party. Once consultations have been requested, the other party shall enter into such consultations as soon as possible concerning the circumstances that have arisen, with a view to finding a solution which would make action under subparagraph (c) unnecessary.

(c) If either party is unable to carry out any of its obligations under this Agreement either party may suspend or terminate the applicability of this Agreement or, with the agreement of the other party, any part of this Agreement. If either party takes action under this subparagraph, that party will, to the fullest extent practicable and consistent with domestic law, seek to minimize disruption to existing trade relations between the two countries.

(d) This Agreement shall be extended for successive periods of three years each unless either party has notified, in writing, the other party of the termination of this Agreement at least 30 days prior to its expiration.

Monroe Leigh, Legal Adviser of the Department of State, wrote a letter on October 31, 1975, to Senator James Abourezk, Chairman of the Senate Subcommittee on the Separation of Powers, describing the criteria which the Department applies in determining what arrangements constitute "international agreements" for the purpose of implementing 1 U.S.C. 112a concerning publication of international agreements and 1 U.S.C. 112b (the Case Act) requiring the transmission of international agreements other than treaties to the Congress. Mr. Leigh listed five criteria and commented on them as follows:

1. Intention of the parties to be bound in international law; 2. Requisite significance of the arrangement;

3. Requisite specificity, including objective criteria for determining enforceability, of the arrangement;

4. The necessity for two or more parties to the arrangement;

5.

Form.

Significance. It has been our interpretation of Sections 112a and 112b that minor or trivial undertakings, even if couched in legal language, do not constitute international agreements within the meaning of those sections. Significance of the obligations undertaken is cited in both the House Report on the Case Act (House Report 92-1301) and in the 1973 "Rush letter" as a relevant variable in deciding whether a particular document is an international agreement under the Act. Senator Case himself excluded "trivia" from the coverage of the Act (Hearings on S. 596, October 21, 1971, p. 65). A promise to sell a U.S. Government map is an example of a trivial undertaking that is not properly classified as an international agreement.

Specificity. It is also our view that international agreements require precision and specificity in setting forth the legally binding undertakings of the parties. Many international diplomatic undertakings are couched in legal language, but are unenforceable promises because there are no objective criteria for determining enforceability of such undertakings. For example, a promise "to help develop a more viable world economic system" lacks the specificity essential to constitute a legally binding international agreement.

The Necessity for Two or More Parties. While unilateral commitments on occasion may be legally binding and may be significant in international relations, they do not, in our view, constitute international agreements. Thus, for example, a promise by the President to send money to country Y to help earthquake victims, but without any obligation whatever on the part of country Y, would be a gift and not an international agreement. It might be an important commitment, but not all obligations in international relations are in the form of treaties or executive agreements, and not all such obligations are legal obligations.

Form. While form as such is not normally an important factor in the law of treaties and international agreements, it does deserve some weight. There are undertakings which meet all of the criteria set forth above, and yet are generally agreed to be commitments outside the framework of international agreements. For example, a Security Council resolution taken under Chapter VII of the United Nations Charter imposing economic sanctions will be legally binding upon all U.N. members. Notwithstanding the fact that the resolution would meet all of the criteria above, it is not considered to be an international agreement under international law or under United States domestic law...

Dept. of State File No. P75 0172-1855. The "Rush letter" mentioned above was sent by Acting Secretary of State Kenneth Rush on Sept. 6, 1973, to all executive departments and agencies concerning submission of agreements to the Congress under the Case Act. Dept. of State File No. POL 4. For an excerpt from that letter, see the 1973 Digest, pp. 187-188.

Proposed Legislation

On May 13, 1975, the Subcommittee on the Separation of Powers of the Senate Committee on the Judiciary began hearings on bills S. 632 and S. 1251, to provide for congressional review of executive agreements.

S. 632, introduced on February 7, 1975, by Senator Lloyd M. Bentsen, Jr., would require that all executive agreements made on or after the date of the bill's enactment be submitted for congressional review. Such agreements would enter into force only after a 60-day waiting period from the date of transmittal, unless within that period both Houses agreed to a concurrent resolution stating their disapproval. Section 5 of the bill provides that the above requirements "shall not apply to any executive agreements entered into by the President pursuant to a provision of the Constitution or prior authority given the President by treaty or law." The term "executive agreement" is defined to mean

any bilateral or multilateral international agreement or commitment, other than a treaty, which is binding upon the United States, and which is made by the President or any officer, employee, or representative of the executive branch of the United States Government.

S. 1251, introduced by Senator John Glenn on March 20, 1975, contains a similar 60-day waiting period, but it provides that executive agreements are subject to Senate disapproval only, rather than disapproval by concurrent resolution of both Houses. The Glenn bill defines an executive agreement as

any bilateral or multilateral international agreement or understanding, formal or informal, written or verbal, other than a treaty, which involves, or the intent is to leave the impression of, a commitment of manpower, funds, information, or other resources of the United States, and which is made by the President or any officer, employee, or representative of the executive branch of the United States Government.

The Glenn bill has no provision similar to section 5 of the Bentsen bill.

On the first day of the hearings, Monroe Leigh, Legal Adviser of the Department of State, testified before the Subcommittee in opposition to the bills, emphasizing their "constitutional deficiencies" as well as practical problems, and offering some alternative possibilities in the way of increased flow of information to the Congress in the area of foreign policy. Excerpts from Mr. Leigh's testimony follow:

I think it might be useful to begin. . . by touching on two recent developments that relate directly to executive-legislative relationships in this area.

As the subcommittee is aware, on August 22, 1972, the President signed into law P.L. 92-403, known as the Case Act, under which the Secretary of State is required to transmit to the Congress the text of any international agreement other than a treaty, to which the United States has become a party, no later than 60 days after its entry into force. Since the adoption of the Case Act, the Department of State has transmitted the texts of 657 executive agreements to the Congress. In addition, although not required by law to do so, the Department has also transmitted with each agreement a background statement setting forth in some detail the context of the agreement, its purpose, negotiating history, and effect.

The Case Act makes special provision for transmittal of agreements "the immediate public disclosure of which would, in the opinion of the President, be prejudicial to the national security of the United States . . . These agreements are transmitted to the Senate Committee on Foreign Relations and the House Committee on International Relations under "an appropriate injunction of secrecy to be removed only upon due notice from the President." Since the adoption of the Case Act, the executive branch has entered into and the Department has transmitted to the Congress 29 agreements under this category.

Revision of Circular 175

A second development of major importance in the three years since hearings were held on this subject, has been the revision of the Department's Circular 175 Procedure. The revised Procedure has two objectives: (1) to meet requests by members of the Senate Committee on Foreign Relations to clarify the guidelines to be considered in determining whether a particular international agreement should be concluded as a treaty or as another form of an international agreement; and (2) to strengthen provisions on consultation with the Congress.

With respect to the consultation provisions, Section 723.1(e) of the Circular 175 Procedure now requires those responsible for negotiating significant new international agreements to advise appropriate congressional leaders and committees of the President's intention to negotiate such agreements, to consult during the course of any negotiations, and to keep Congress informed of developments affecting them, including especially whether any legislation is considered necessary or desirable for the implementation of the new treaty or agreement.

The Procedure also requires consultation with the Congress when there is a question whether an agreement should be concluded as a treaty or in some other form.

... further development of our procedures for consultation with the Congress remains the most fruitful approach to an acceptable institutional framework for executive-legislative cooperation in the making of international agreements. Perhaps

using the new Circular 175 Procedure as a starting point, we might be able to develop better institutional methods for achieving the common goal of enhancing the role of Congress without unduly constraining the effective conduct of U.S. foreign policy...

Section 5 of the Bentsen bill . . . as we read the bill, would limit the bill's application since all executive agreements are negotiated by the President under the authority of the Constitution and all are entered into pursuant to the Constitution, or prior statute or treaty. My interpretation of Section 5 is that it excludes from application all categories of executive agreements. Even if a different interpretation were placed on Section 5, only a tiny fraction at most of such agreements would be covered by the bill.

The Glenn bill and the Bentsen bill without Section 5 would, in my view, be unconstitutional if enacted into law as presently written. They would appear to rest upon an assumption_that there is no independent constitutional authority in the President to conclude executive agreements. It is true that the vast majority of executive agreements are made pursuant to statute or treaty, but some agreements are concluded under the authority of the President's independent constitutional power. With these Congress may not constitutionally interfere. This view is not peculiar to the Department of State or to the executive branch generally. Rather it has long been accepted by legal scholars and by the Supreme Court of the United States. I refer to U.S. v. Belmont, 301 U.S. 324 (1937), and U.S. v. Pink, 315 U.S. 203 (1942).

Several provisions of the Constitution have long been held to authorize the making of executive agreements. Most generally, Article II, § 1, provides that "The executive power shall be vested in a President of the United States of America." In the case of U.S. v. Curtiss Wright Export Corp., 299 U.S. 304 (1936), the Supreme Court indicated that inherent in this executive power is the power to conduct foreign relations. Quoting John Marshall, the Court said that "The President is the sole organ of the Nation in its external relations. . . . " The Court also noted that the "powers of external sovereignty" of the Nation included "the power to make such international agreements as do not constitute treaties in the constitutional sense. "The execu

tive power clause enables the President to conclude agreements for the purpose of settling differences with other governments in order to ensure the satisfactory continuation of diplomatic relations.

Article III, § 2 of the Constitution provides that "The President shall be Commander in Chief of the Army and Navy. . . . " Many wartime agreements concerning military matters, such as armistices, force deployments and control of occupied areas, have been concluded under this authority.