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Quoting from McDougal and Lans, The Yale Law Journal, Vol. 54: 181, pp. 237-238, Mr. Leigh referred to the longstanding practice of concluding executive agreements with two-House legislative support, and cited historic examples indicative of the “importance" and "dignity" of agreements that had been so concluded. With respect to the Department's criteria for deciding upon treaty or executive agreement, Mr. Leigh pointed out that the Circular 175 standards by their own terms are not legally binding, but even if they were, “it is impossible to determine that such standards have been violated in the case of the Middle East documents in question."
In a second memorandum on the standing of the Middle East agreements, the OLC commented upon the response of the Legal Adviser of the Department of State. It acknowledged that some of the matters previously raised might now be moot, but it objected to what it termed "the claims of broad executive authority asserted by Monroe Leigh." The OLC stated that Mr. Leigh's response “proceeded entirely from the premise that the President may enter into any international agreement solely on the basis of his own executive authority and that every such agreement will be valid notwithstanding the absence of advice and consent of the Senate.” The OLC held the view, on the other hand, that "the text of the Constitution. . . must be given some meaning.” It argued that if Article II, section 2, clause 2, providing for Senate advice and consent to treaties, has any meaning, “it is that some international agreements must be regarded, constitutionally, as treaties," and if so, “it would seem that an agreement which ‘relates to a subject matter of exceptional national importance must be so regarded."
In a reply of February 4, 1976, to the second OLC memorandum, Arthur W. Rovine, Assistant Legal Adviser for Treaty Affairs, Department of State, pointed out that Mr. Leigh had not claimed that the President's choice of treaty or executive agreement was unfettered. He stressed Mr. Leigh's point that the international agreement must be legally authorized to begin with: "That is to say, there must be authority in a statute, a treaty, or the Constitution itself for the President to enter into the agreement. Provided he has such authority, he may lawfully choose between treaty or executive agreement.” He reemphasized the "set of customs and usages concerning form which are invariably adhered to in the process of international agreement making."
With respect to the intention of the framers of the Constitution, Mr. Rovine examined subsequent action and statements by Presidents James Monroe, James Madison, Thomas Jefferson, and John
Adams, all Founding Fathers, to conclude that “the treaty was not believed to be the only type of international agreement, and that agreements concluded pursuant to statute or pursuant to the President's independent powers were also considered to be constitutionally appropriate." He gave particular attention to the action of President James Monroe in concluding as an executive agreement the Rush-Bagot agreement with Canada to limit arms on the Great Lakes (8 Stat. 231; 12 Bevans 54).
Mr. Rovine quoted from an extensive list of Supreme Court cases on the value of practice and usage as guides to the meaning of the Constitution, as well as cases to support the validity and scope of executive agreements. He provided further comments on the Circular 175 criteria as applied to the Middle East agreements; he noted that the national commitments resolution (S. Res. 85, 91st Cong.) by its own terms does not require a treaty in any given case; and he gave the specific legal authorization for the various commitments and assurances contained in the Middle East agreements.
With respect to the OLC's argument that one agreement was invalid under international law because Israel should reasonably have known that it was required to be submitted as a treaty, Mr. Rovine quoted from Louis Henkin, Foreign Affairs and the Constitution, 1972, p. 427, that failure to obtain Senate consent "cannot be a 'manifesť violation of the Constitution since no one can say with certainty when it is required.” He concluded:
In view of the fact that the United States undertakings in these agreements were authorized by statute, in the case of the substantive obligations, and by the Constitution, in the case of the diplomatic obligations, the agreements were appropriately concluded as executive agreements. For the OLC memoranda of Sept. 24 and Oct. 22, 1975, and the Legal Adviser's memorandum of Oct. 6, 1975, see Cong. Rec., Vol. 121, No. 170, Nov. 14, 1975, pp. S20102–20115 (daily ed.). For the memorandum of Feb. 4, 1976, by the Assistant Legal Adviser for Treaty Affairs, see Cong. Rec., Vol. 122, No. 20, Feb. 17, 1976, pp. S1687–1692 (daily ed.). See also 14 International Legal Materials 1585–1596, for the first two memoranda in the series.
Spanish Bases The Department of State advised the Senate Committee on Foreign Relations on October 23, 1975, that the Administration planned to seek the support and approval of the Congress, either by the treaty method or by joint resolution, for the proposed new agreement with Spain on friendship and cooperation, including U.S. base rights in Spain. The Department reiterated that inten
tion in a letter of December 9, 1975, from Ambassador Robert J. McCloskey, Assistant Secretary for Congressional Relations, to Senator John Sparkman, commenting on proposed Senate Resolutions 292 and 295, which would call for submission of the agreement as a treaty on the basis of the "importance" of the commitments involved. An excerpt from Ambassador McCloskey's letter follows:
While there is no constitutional requirement to submit base agreements for congressional approval, and the traditional United States practice has been to conclude such arrangements by executive agreement without such formal approval, the Administration believes that it is desirable to have fuller participation of the legislative branch in the conclusion of the new Spanish agreement, which is broader in scope than a purely base agreement ....
Although the executive branch has considered and will continue to consider the “importance" of an agreement's commitments and risks as a key factor in determining whether to submit it as a treaty, neither legal authority nor the constitutional practice of the United States requires that "important" agreements be concluded exclusively as treaties.
While the President has and must retain the authority to conclude important international agreements on the basis of his constitutional powers alone, the power to proceed on that basis is not proposed to be exercised in this case. Instead, affirmative action by both legislative and executive branches, either by treaty or joint resolution, is proposed. It should be noted that the Congress has enacted statutes approving, subsequent to negotiation, a great many international agreements other than treaties. These have dealt with a wide variety of important matters such as arms limitation, acquisition of and trusteeship over territory, and membership in international organizations. The Arms Control and Disarmament Act (22 U.S.C. $ 2573) expressly contemplates either treaty or joint resolution as alternative bases for international agreements in that important area. The Senate itself, in the National Commitments Resolution of 1969, contemplated important national commitments being made on several bases, including treaty or statute.
Dept. of State File No. P75 0191-0821.
The new U.S.-Spain agreement signed on Jan. 24, 1976, is entitled “Treaty of Friendship and Cooperation.” It provides for entry into force upon exchange of ratifications, and was submitted on Feb. 18, 1976, for Senate advice and consent (S. Ex. E, 94th Cong., 2d Sess.).
On October 4, 1975, the Deputy Administrator of the Agency for International Development (AID) sent a telegram to personnel at overseas posts directing them to transmit to the AID General Counsel international agreements executed by them thereafter or since June 30, 1975. The directive was stated to be in fulfillment of AID responsibilities under the Case Act (P.L. 92-403; 86 Stat. 619; 1 U.S.C. 112b) which requires the Secretary of State to transmit to the Congress the text of any international agreement, other than a treaty, to which the United States is a party within 60 days after it enters into force. The AID directive applied to agreements with foreign governments, departments or agencies thereof, and public international organizations or agencies thereof. It excluded from coverage contracts or agreements with private individuals, nongovernmental organizations, or United States Federal, State, or local governments.
Final Act of the Conference on Security and
Cooperation in Europe
The Conference on Security and Cooperation in Europe (CSCE) adopted a Final Act which was signed at Helsinki on August 1, 1975, by the United States and the 34 other participating states. On July 25, 1975, President Ford made a statement concerning his plans to attend the Conference, in which he said:
I would emphasize that the document I will sign is neither a treaty nor is it legally binding on any participating state. The Helsinki documents involve political and moral commitments aimed at lessening tensions and opening further the lines of communications between the peoples of East and West.
The last section of the Final Act of the CSCE contains the following statement regarding its ineligibility for registration with the United Nations as an international agreement:
The Government of the Republic of Finland is requested to transmit to the Secretary-General of the United Nations the text of this Final Act, which is not eligible for registration under Article 102 of the Charter of the United Nations, with a view to its circulation to all the members of the Organization as an official document of the United Nations.
On July 18, 1975, the Journal No. 80/bis of the Coordinating Committee of the CSCE reported the intention of the Government of Finland, as depositary of the Final Act, to send a letter to the Secretary-General of the United Nations, reading in part as follows:
I have . . . been asked to request you, Mr. Secretary-General, to arrange for the circulation of this Final Act to Member States of the Organization as an official document of the United Nations, and to draw your attention to the fact that this Final Act is not eligible, in whole or in part, for registration with the Secretariat under Article 102 of the Charter of the United Nations, as would be the case were it a matter of a treaty or international agreement, under the aforesaid Article.
For the full text of President Ford's statement of July 25, 1975, see Weekly Compilation of Presidential Documents, Vol. 11, No. 30, July 28, 1975, pp. 780–781. For the Final Act of the CSCE, see Dept. of State Bulletin, Vol. LXXIII, No. 1888, Sept. 1, 1975, pp. 323–350. For reference to various provisions of the Final Act, see index entries, this Digest, under Conference on Security and Cooperation in Europe (CSCE) (1975).
On September 9, 1975, David H. Small, attorney-adviser in the Office of the Legal Adviser, Department of State, wrote the following description of the nature of a “Final Act,” particularly as the term was used in the context of the CSCE:
According to a leading scholar, "A Final Act has been defined 'as a formal statement or summary of the proceedings of a congress or conference "" (Lord McNair, “The Law of Treaties," p. 24). Normally, a Final Act does not itself, even if signed, contain or constitute legally binding commitments. According to the guidelines maintained by the Office of the Assistant Legal Adviser for Treaty Affairs, the Final Act of an international conference normally names the conference; specifies when and where the conference was held; names the states which participated in the conference; states the purpose for which the conference was held; outlines the organization of the conference; embodies or has attached to it resolutions adopted