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East agreements, he made the following statements with respect to the legal nature of the documents that had been initialed or signed by the United States and their classification:
Within days of my return from the Middle East we voluntarily supplied to the committees of Congress, on a classified basis, highly sensitive material relevant to the negotiation of the Sinai accord. Included in this material was information from the record of the negotiations of the very category which President Washington declined to furnish to the House of Representatives in 1794 and which no Administration has supplied since.
.. we provided four sets of documents to the appropriate congressional committees. They are:
- First, the U.S. proposal for stationing technicians in the Sinai.
-Second, the unclassified agreement between Israel and Egypt, and its military annex.
-Third, the classified documents which the Administration has certified include all of the assurances, undertakings, and commitments which we consider to be legally binding upon the United States. These documents also contain many provisions which are not considered legally binding; they were submitted because they were contained in documents which include binding clauses and which were initialed or signed by the United States and one of the parties.
-Fourth, extracts from other classified documents in the negotiating record which the Administration believes are legally binding assurances, undertakings, or commitments. We have included in this category certain provisions which, although not regarded by the Administration as binding, might be so regarded by others.
We presented these classified documents on the assumption that they would be treated as if they had been transmitted under the Case Act [Public Law 92-403), which provides for submission of executive agreements to the Congress, but with "an appropriate injunction of secrecy to be removed only upon due notice from the President."
... the executive branch has complied with both the letter and spirit of the committee's resolution requesting the President to inform the committee "of all the assurances and undertakings by the United States on which Israel and Egypt are relying in entering into the Sinai Agreement . ..." I am authorized on behalf of the President to state that there are no other assurances or undertakings, beyond those already submitted to the Congress, which are binding upon the United States. We will make no contrary claim in the future; nor can any other government.
With regard to the U.S. undertakings, the Administration is particularly concerned about two points:
-First, that congressional approval of the proposal on the technicians not link the Sinai agreement to the U.S. undertakings—which are distinct and separate; and
Second, that U.S. statements of intention not be given a legally binding character which was never intended and is not inherent in them.
The Administration is convinced that congressional approval of the proposal to station technicians in the Sinai does not import or imply approval of anything more.
The United States is not a party to the Sinai agreement. That agreement is between Israel and Egypt; they are the only signatories and the only states bound by it. The agreement repeatedly speaks of the obligations of "the parties"; it is beyond dispute that “the parties” are Egypt and Israel, and not the United States.
The agreement provides, in an annex, that in the buffer zone between Egypt and Israel in which the United Nations Emergency Force will continue to perform its functions—there will be established an early-warning system entrusted to U.S. civilian personnel. The proposal of the United States, for which approval of the Congress is being sought, provides details of that earlywarning system. That proposal is described as a part of the agreement between Egypt and Israel, but that does not imply that the United States is party to this agreement. By the same token the U.S. assurances and undertakings before this committee, while given on the occasion of, and concordant with, the conclusion of the Sinai agreement between Egypt and Israel, are not in any sense part of the Sinai agreement.
The special position of trust enjoyed by the United States inevitably means that both sides attach great significance to our views. Statements of our intentions, therefore, served as a lubricant in this most recent negotiation just as they have in every previous mediation effort. But they must be seen in perspective and in the light of historical practice. It is extremely important, therefore, that in approving the sending of U.S. technicians the Congress should take care not inadvertently to create commitments that were never intended.
We have submitted all documents containing U.S. commitments. Not all provisions in these documents amount to binding undertakings. They include:
-First, assurances by the United States of our political intentions. These are often statements typical of diplomatic exchange; in some instances they are merely formal reaffirmations of existing American policy. Other provisions refer to contingencies which may never arise and are related—some times explicitly—to present circumstances subject to rapid change.
Second, undertakings or assurances by the United States which are conditional on existing or prior authorization and appropriation by the Congress or which fall within the constitutional authority of the President to conduct the foreign relations of the United States.
Thus to speak of memoranda of agreement as executive agreements is by no means to say that each of their individual provisions is binding upon the United States. That depends entirely upon the content of the specific provisions in question. Moreover, nothing in these particular documents constrains congressional action in any issue involving the future legislative process.
The fact that many provisions are not by any standard international commitments does not mean, of course, that the United States is morally or politically free to act as if they did not exist. On the contrary, they are important statements of diplomatic policy and engage the good faith of the United States so long as the circumstances that gave rise to them continue. But they are not binding commitments of the United States.
For the full text of Secretary Kissinger's statement before the Senate Foreign Relations Committee on Oct. 7, 1975, see Dept. of State Bulletin, Vol. LXXIII, No. 1896, Oct. 27, 1975, pp. 609-613; Hearings on Early-Warning System in Sinai, Committe on Foreign Relations, U.S. Senate, Oct. 6 and 7, 1975, pp. 206– 243.
On October 13, 1975, President Ford signed into law the joint resolution to implement the United States proposal for the earlywarning system in Sinai, Public Law 94–110; 89 Stat. 572; 22 U.S.C. 2441 note. Section 5 of the joint resolution provides:
The authority contained in this joint resolution ... does not signify approval of the Congress of any other agreement, understanding, or commitment made by the executive branch.
The U.S. proposal for an early-warning system in the Sinai, which had been signed on Sept. 1, 1975, entered into force on Oct. 13, 1975, between the U.S. and Israel (TIAS 8155; 26 UST 2271) and the U.S. and Egypt (TIAS 8156; 26 UST 2278), respectively.
The validity and legal sufficiency of certain agreements and assurances made by the United States in connection with the Egypt-Israel disengagement agreement of September 4, 1975, were discussed in a series of memoranda by the Office of Legislative Counsel (OLC) of the Senate and the Legal Adviser's Office of the Department of State.
The OLC, in a memorandum of September 24, 1975, took the position that one memorandum of agreement between the United States and Israel, dated September 1, 1975, and possibly two other documents setting forth assurances from the United States to Israel and Egypt, respectively, were “beyond the power of the President to enter into without the advice and consent of the Senate" and were therefore without force and effect under domestic constitutional law. The OLC argued further that at least one of the memoranda of agreement would be without force and effect under international law, on the grounds that Israel should reasonably have known of its constitutional defect. Two other agreements, it concluded, would be valid under international law, as Israel could not reasonably have known of the "constitutional defect."
Using as its sources, (1) the text of the Constitution, (2) the intent of the framers, (3) actual practice, (4) Supreme Court and other cases, (5) criteria suggested by various authorities, and (6) criteria employed by the Department of State in its Circular 175, the OLC concluded that
Strong support exists for the proposition that an agreement which
(1) relates to a subject matter of exceptional national importance;
(2) constitutes a commitment within the meaning of the national commitments resolution; or
(3) qualifies as a treaty under the “Circular 175” criteria employed by the Department of State is in violation of the Constitution if entered into by the President without the advice
and consent of the Senate. Under international law as evidenced in various sources, including Articles 45 and 46 of the Vienna Convention on the Law of Treaties, the OLC noted that
(1) a State may be bound, under international law, by an agreement made in violation of its constitutional process;
(2) a State is not bound if (A) such violation is fundamental; and (B) the other party to such agreement should reasonably have known of the constitutional defect;
(3) such State is bound, however, if its subsequent conduct indicates acquiescence in the validity of the agreement.
Monroe Leigh, Legal Adviser of the Department of State, replied to the OLC memorandum on October 6, 1975, stating that the choice of form in the United States had never been regulated by law, that there were no judicial decisions, statutes or Federal regulations on the issue, but that the President was expected to adhere to customs and usages concerning form which had evolved since conclusion of the first executive agreements in the early years of the Republic. He said:
Within the general framework of international agreements authorized by statute, treaty, or Constitution, the President has
the discretion to choose whether to conclude any particular agreement as a treaty or as an executive agreement. Provided the agreement is properly authorized by law, there is no legal requirement that it be concluded either as a treaty or executive agreement. The President's choice is based upon his appraisal of the merits of each approach. He naturally takes into account prior U.S. practice with respect to the general type of agreement in question, and he takes into account the several sources of guidance provided by the Department of State Circular 175 Procedure. His determination is thus shaped by general standards and usages that have evolved over the years and the President will rarely disregard this "common law." He will not willingly or lightly flout the general expectations and preferences of the Congress, or the established practices of many years' duration.
ultimately it is the President as the sole negotiator for the Nation in foreign affairs who must determine the degree of formality and solemnity he wishes to give to a particular international agreement. Such policy considerations weigh heavily in his final determination. Since these considerations are necessarily relevant to the conduct of U.S. foreign policy, a legal requirement that a particular type of agreement has necessarily as a matter of law to be submitted as a treaty would constitute an unacceptable interference with the President's capacity to serve as negotiator in international affairs, and for that reason, would probably be unconstitutional
Mr. Leigh specifically rejected the proposition that all “important” international agreements must, as a matter of law, be submitted to the Senate as treaties, noting that no statute, judicial decision, or scholarly authority had been cited by the OLC in support of that proposition. He stated, on the contrary, that neither the text of the Constitution nor the intent of the framers provided guidance on the choice of treaty or executive agreement, while longstanding practice and the Supreme Court holdings in United States v. Belmont, 301 U.S. 324 (1937), and United States v. Pink, 315 U.S. 203 (1942) recognized the right of the President to enter into executive agreements, even on important subjects. Mr. Leigh analyzed the cases that had been cited by the OLC as "tangentially relevant” to the issue but challenged the conclusion that they provided any support for the “importance” test as a limitation on the power of the President to make executive agreements. The cases included Holmes v. Jennison, 14 Peters 540 (1840), Valentine v. U.S. ex rel. Neidecker, 299 U.S. 5 (1936), the Belmont case, supra, and United States v. Capps, 204 F.2d 655 (1953).