authority (see Section 721 of the Circular 175 Procedure) and has never been challenged in this interpretation by either the legislative or judicial branch of the Government.

Practice as well indicates general acceptance of the abovelisted provisions as authorizing the President to negotiate and conclude international agreements pursuant to his independent constitutional powers. While such agreements are comparatively few in number (comprising, as noted, only about 2 to 3 percent of all executive agreements entered into by the United States), the practice followed over the years has received a very widespread acceptance by the legal community and by all branches of the Government. Today it is well established that the President has the right to conclude agreements under his independent powers, and that the provisions cited above comprise the several constitutional bases for such agreements.

III.

The purpose of listing examples of the kinds of international agreements entered into pursuant to the Constitution and without reference to treaty or statutory authority is to provide guidance and illustrations, rather than an exhaustive listing. The illustrations set forth below are not meant to imply that other types of agreements than the ones referred to under each constitutional provision would be improper or legally unauthorized. The examples below are illustrative of the general U.S. practice over the years, and of the general legal framework for the conclusion of international agreements authorized by the Constitution.

The executive Power shall be vested in a President of the United States of America. (Art. II, § 1)

In the view of the Department of State, the "executive power" clause of Article II, § 1 of the Constitution provides a wide basis for the making of executive agreements. For example, agreements to consult with another nation on a particular subject may be authorized solely by the executive power clause. An illustration is a 1968 agreement with Brazil which established procedures for direct communication between the authorities of the United States and Brazil for the "exchange of points of view and the adoption of appropriate measures on common problems of maritime transportation." (TIAS 6559.)

Other examples of international agreements concluded pursuant only to the "executive power" clause are those dealing with the construction of a sewage disposal system (U.S.-Canada, 1967, TIAS 6037); a waiver of certain claims against the United States arising out of the sinking of a ship (U.S.-Japan, 1949, TIAS 1911); the recognition of a Foreign Service Institute School as part of the U.S. Embassy in China (U.S.-China, 1969, TIAS 6759); payments on outstanding bonds (U.S.-Haiti, 1946, 1947, TIAS 1521, 1599, 1643, 1862); documentary requirements in Italy concerning evidence for marriage (U.S.-Italy, 1964, TIAS 6239); correction or interpretation of earlier agreements (many exam

ples); income tax administration (U.S.-Viet-Nam, 1967, TIAS 6262).

The examples listed here are . . . not exhaustive. The daily business of the United States Government necessitates a number of such arrangements, and it would be futile to attempt a complete catalogue. Perhaps the best expression of the necessity for the practice was written in 1905 by John Bassett Moore:

The conclusion of agreements between governments, with more or less formality, is in reality a matter of constant practice, without which current diplomatic business could not be carried on. A question arises as to the rights of an individual, the treatment of a vessel, a matter of ceremonial, or any of the thousand and one things that daily occupy the attention of foreign offices without attracting public notice; the governments directly concerned exchange views and reach a conclusion by which the difference is disposed of. They have entered into an international "agreement"; and to assert that the Secretary of State of the United States, when he has engaged in routine transactions of this kind, as he has constantly done since the foundation of the government has violated the Constitution because he did not make a treaty, would be to invite ridicule. Without the exercise of such power it would be impossible to conduct the business of his office. "Treaties and Executive Agreements," 20 Pol. Sci. Quarterly 385, 389-390 (1905).

Moore's statement was descriptive of executive agreements of an informal kind. He also supported the right of the President to enter into agreements of a more formal nature. The statement above, however, aptly describes in general terms the kind of international agreement, formal or informal, authorized by the "executive power" clause of Article II, § 1 of the Constitution.

More significant agreements authorized by the "executive power" clause have been provisional boundary settlements, and provisional arrangements pending final action on basic instruments of international organizations. (See Whiteman, Digest of International Law, Vol. 14, p. 245.) An example of the latter was the interim arrangement with the United Nations regarding establishment of the U.N. Headquarters (TIAS 1677). Agreements concerning the basis of future negotiations, or tentative agreements pending further negotiations are also authorized by the "executive power" clause.

Claims agreements are among the most important of the executive agreements authorized by the "executive power" clause. It has been accepted in United States practice and in international law that

The President, being entrusted with the right of conducting all negotiations with foreign governments, is the sole judge of the expediency of instituting, conducting or terminating them in respect of reclamations for injuries sustained by citizens abroad. Agreements for the adjustment or settlement of pecuniary claims of citizens against foreign governments,

which meet with the approval of the claimants, and by which no obligation, except to relinquish the claim, is assumed on the part of the United States, are not usually submitted to the Senate. . . . (Crandall, Treaties, Their Making and Enforcement, 2d ed., 1916, at p. 108.)

Claims agreements may also be incident to the recognition of a particular government, as in the case of the Litvinov Assignment.

The "executive power" clause may also authorize agreements in order to carry out the purposes of a statutory or treaty provision which, while not expressly calling for an "executive agreement," nevertheless requires the President to take some action involving activity with another nation or a program of international cooperation. Thus, for example, Section 3(a) of the Peace Corps Act (22 U.S.C. 2502) provides that "The President is authorized to carry out the programs in furtherance of the purposes of this Act, on such terms and conditions as he may determine." This clause, in addition to the "executive power" clause, is the authority for many Peace Corps agreements entered into by the United States.

Under the "executive power" clause, the President has concluded agreements which are not inconsistent with legislation in areas where the Congress has primary responsibility, such as the power to regulate foreign commerce. Examples are the 1975 Long Term Agreement on Economic, Industrial and Technical Cooperation with the Soviet Union (TIAS 7910), the 1975 Grains Agreement with the Soviet Union, and the 1970 Agreement on Debt Rescheduling with Indonesia. Since such agreements do not themselves have the force of domestic law if a statutory scheme has preempted the field, statutory authority may be required to give such agreements the force of domestic law. An example is the 1974 Agreement on an International Energy Program. Cf. Consumers Union v. Kissinger, 506 F.2d 136 (D.C. 1974).

The President shall be Commander in Chief of the Army and Navy . . . . (Art. II, § 2.)

As the American Law Institute points out in the commentary to Section 121 of the Restatement, "[a] large proportion of the international agreements made under the powers of the President and intended to create legal relationships under international law have been based on his power as Commander in Chief and have provided for the conduct of military operations with allies of the United States." (at p. 379.)

McDougal and Lans, in their exhaustive 1945 study of executive agreements, wrote the following with respect to agreements under the Commander in Chief power:

As the Supreme Court has pointed out the President's expressly granted power to act as Commander in Chief of the Army and Navy necessarily includes authority to make agreements with foreign nations to protect the military security of the United States, both in time of war and of peace. Thus, in time of peace, Presidents have assumed power to make com

pacts providing for the limitation of armaments, for joint activity with other nations in providing for common defense, and for the passage through the United States of foreign troops

Yale Law Journal, op. cit. pp. 246-247. [Footnotes omitted] An important example of an agreement "for joint activity with other nations in providing for common defense," cited by McDougal and Lans, is the 1940 Hull-Lothian Agreement between the United States and Great Britain under which, in return for a 99-year lease of certain sites for naval bases on British possessions in the West Atlantic, the United States transferred to Great Britain fifty over-age destroyers.

More recent examples of agreements concluded under the Commander in Chief power include the 1949 Four-Power agreement ending the Berlin Blockade (TIAS 1915), the Korean Armistice Agreements of 1953 (TIAS 2781, 2782), agreements with the Soviet Union in 1972 and 1973 relating to the prevention of incidents on and over the high seas (TIAS 7379, 7624), and the 1973 agreements on ending the war and restoring peace in Viet-Nam (TIAS 7542, 7568, 7674).

As above, these examples are illustrative only, and should not be read as the definitive listing of the several types of executive agreements which may be concluded by the President pursuant to the Commander in Chief clause.

[H]e shall receive Ambassadors and other public Ministers. ... (Art. II, § 3)

This clause is the basis for the authority of the President to recognize foreign governments and to enter into recognition agreements. As well, the recognition power supports the corollary power to enter into agreements for settling outstanding problems, such as claims, at the time of recognition. It was just such a claims agreement (the Litvinov Assignment of 1934) that was upheld by the Supreme Court in the Belmont and Pink cases, supra.

[H]e shall take care that the laws be faithfully executed . . . (Art. II, § 3)

Arthur Dean has written that this clause gives the President a certain power to enter into executive agreements, particularly those which are essentially administrative in character, implementing congressional legislation where there is no express grant of authority in such legislation to enter into executive agreements pursuant thereto. The President requires these independent powers to enter into executive agreements both to meet national emergencies . . . and to handle the routine conduct of foreign affairs. ("The Bricker Amendment and Authority Over Foreign Affairs," 32 Foreign Affairs (1958), 1–2, 11.)

McDougal and Lans add that

An important aspect of the President's powers under this clause is the authority to enter into agreements which supplement or modify treaties; but the clause equally sanctions.

agreements which are necessary to fulfill other international obligations of the United States. (Yale Law Journal, op. cit., p. 248.)

This clause overlaps to a great extent the "executive power" clause insofar as the latter provision authorizes agreements to carry out the purposes of a statutory or treaty provision which does not expressly call for an international agreement but requires the President to take some action involving activity with another nation or a program of international cooperation. The Executive has, under this clause, also concluded agreements which facilitate implementation or enforcement of statutes which do not expressly call for an international agreement. Examples are customs agreements and radio frequency allocation agreements. See above p. 9. Agreements of these kinds are authorized by both the "executive power" provision and the provision requiring the President to "take care that the laws be faithfully executed. . .

Conclusion

(1) The legal right of the President to conclude executive agreements pursuant solely to his independent constitutional powers is not open to question. That right has been recognized by the Supreme Court, the Congress, scholars, and a constant practice.

(2) The constitutional provisions which empower the President to conclude international agreements without reference to treaty or statutory authority are the "executive power" clause (Art. II, § 1), the "Commander in Chief" clause (Art. II, § 2), and the clauses requiring the President to "receive Ambassadors and other public Ministers" (Art. II, § 3) and to "take care that the laws be faithfully executed" (Art. II, § 3).

(3) There are many examples of executive agreements concluded by the President pursuant to his independent constitutional powers. The examples cited are illustrative of the general United States practice and do not constitute an exhaustive listing.

Dept. of State File No. P75 0172–1084.

Middle East Agreements

In early September 1975, the Department of State voluntarily provided, on a classified basis, to committees of the Senate and House of Representatives documents containing U.S. assurances and undertakings relevant to the disengagement agreement between Israel and Egypt, signed September 4, 1975. On October 3, 1975, the Senate Committee on Foreign Relations, which was considering the United States proposal for participation in an early-warning system in the Sinai, agreed to a motion to declassify the documents. When Secretary of State Kissinger appeared before the Committee on October 7, 1975, to testify on the Middle