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nity of treaties, even with Canada. Since the Boundary Waters Treaty of 1909 we negotiated treaties with Canada in 1925 regulating the level of Lake of Woods. We negotiated a treaty in 1940 for the emergency regulation of Rainy Lake. We negotiated a treaty in 1929 and again in 1950 regulating the flow of waters and preserving the scenic beauties of Niagara Falls and for diversion through the Niagara River.

UNITED STATES UNDERTAKINGS WITH MEXICO THROUGH TREATIES

The same with Mexico: Since 1848 every single undertaking with Mexico relating to boundary waters and joint construction has been by treaty. The recent Mexican Treaty of 1944, the Mexican Waters Treaty, provided for the allocation of water, provided for the joint construction of engineering projects, dams, hydroelectric power projects, just as in the case of the St. Lawrence project, and it was by treaty.

Mr. Hackworth of the State Department when he was asked in 1944 to compare the Mexican Waters Treaty with the St. Lawrence seaway and power project said, "There is probably not any great difference in essence between these two documents.'

And so I say to you

The CHAIRMAN. Just right there, you referred to the United States and Mexican Water Boundary. That was done by a treaty. We spent over a month in this committee fighting over that matter. California was opposed, and others were opposed but it was all done by treaty. Mr. BURGESS. Absolutely.

Now I say to you that from this study it is perfectly clear that this sort of thing sui generis, requires a treaty, and never before in history has it been more important to preserve these constitutional safeguards than it is now.

SENATE ACTIONS REGARDING EXECUTIVE AGREEMENTS

The record shows that the Senate is increasingly aware of it. I refer to the Connally resolution of 1943 coming after all of this discussion where it was directed that the peace treaty and peace determination should be made by treaty and not by executive agreement.

I refer to your requirement that the UNRRA agreement be rewritten so as to eliminate any obligation on the part of the United States before you approved it as an executive agreement.

In 1945 you returned to the President the Anglo-American Oil Agreement to be renegotiated as a treaty.

The Senate Committee on Commerce in 1946 adopted a resolution that this so-called Bermuda-type agreement for international aviation should thereafter be made by treaty, a matter which the Department of State disregarded in making the agreement in 1949 in respect to aviation with Canada.

You withheld approval of the St. Lawrence project as an executive agreement.

Finally, last week 57 Senators joined in Senate Resolution No. 130 undertaking to put a specific time limit on executive agreements. The Senate is increasingly aware of the importance at this time of preserving its jurisdiction.

I say that this St. Lawrence seaway and power project is not a borderline case. This is way over on the side of the treaty. This is no narrow case and if it should be adopted by executive agreement it is difficult to imagine any international agreement that could not be justified as an executive agreement.

The St. Lawrence executive agreement of 1941 is of an unlimited duration, no time limit. It obligates us forever. It requires great expenditures, vast expenditures. It constitutes a firm commitment to Canada forever of the United States.

And to say that that should not be adopted as a treaty rather than an executive agreement means that there is no international undertaking now or in the future that cannot rely on this as a precedent for adoption as an executive agreement.

I have hurried over my statement because I realize you are very much occupied and you want to get around with all of these people but this is a highly important consideration and I trust that this mat

ter

INSERTION OF STATEMENT IN THE RECORD

The CHAIRMAN. If you did not cover all your statement you may put it in.

Mr. BURGESS. I have just high-spotted it.

The CHAIRMAN. You may put it in the record.

Mr. BURGESS. I have high-spotted this printed statement which is my statement. I had hoped to present it in some detail.

The CHAIRMAN. Without objection it will be printed in the record. Mr. BURGESS. Thank you.

The CHAIRMAN. I think it is highly important that it be in the record where all the Senators and others can note it.

Mr. BURGESS. We feel very deeply about it.

The CHAIRMAN. I am very much interested in that question. If you can do by executive agreement anything international, then the treaty power is out.

Mr. BURGESS. The treaty power is gone forever. Of course, that was what they undertook to do, to destroy it.

The CHAIRMAN. I have no sympathy with the attitude of the State Department on that, as I have not had on some other subjects.

The CHAIRMAN. We will recess until tomorrow morning.

Senator GREEN. Mr. Chairman, this brief that you put in the record

The CHAIRMAN. I did not put it in the record. I said he could file the brief. I did say he could put his entire statement in the record. Senator GREEN. This was part of his statement.

Mr. BURGESS. That, Senator, was my statement. I had intended to present that as a statement.

The CHAIRMAN. The brief?

Mr. BURGESS. I had hoped to.

The CHAIRMAN. Your complete statement, does it not cover these matters?

Mr. BURGESS. That was my statement.

The CHAIRMAN. I mean the statement you say you skipped over? Mr. BURGESS. I was referring to this document.

The CHAIRMAN. That is what you are talking about, this statement here?

Mr. BURGESS. Yes.

The CHAIRMAN. I thought you had a written statement besides this. Mr. BURGESS. No. In the past consideration, two similar statements were presented and made part of the record, one, I think, by Professor. Borchard and another one by the State Department. I was hoping that this also might become a part of the record.

The CHAIRMAN. There are so few Senators here, I suppose we would have to wait.

INCLUDING IN THE RECORD THE BOUNDARY AGREEMENT OF 1909

Senator GREEN. I am not advocating or opposing its being printed. All I am saying is, if it is going in, I think the boundary agreement of 1909 should be put in in order to make it intelligible.

Mr. BURGESS. I think it should.

The CHAIRMAN. Without objection, we will print your brief.
Senator GREEN. That is a long document itself.

Mr. BURGESS. Not very long.

The CHAIRMAN. You asked for it.

Senator GREEN. I have not asked for it.

The CHAIRMAN. They will both be printed in the record.

Senator GREEN. Excuse me, Mr. Chairman, I have not said it. I said distinctly I have not.

The CHAIRMAN. You said if this went in, you should have the other. Senator GREEN. The other should go in, too, but I am not asking for either.

The CHAIRMAN. I understand but I am willing to let the other go in. Mr. BURGESS. The other only comprises about seven pages.

The CHAIRMAN. Very well. We will put them both in the record, if there is no objection.

All right, they will go in the record.

(The brief and treaty follow :)

CONSTITUTIONAL REQUIREMENTS FOR THE ST. LAWRENCE SEAWAY AND POWER PROJECT

Obligations embraced in Senate Joint Resolution 27 may be assumed by the United States only by Treaty concurred in by two-thirds of the Senators present.

MEMORANDUM FOR SUBMISSION TO THE COMMITTEE ON FOREIGN RELATIONS UNITED STATES SENATE

(By Kenneth E. Burgess)

PREFATORY NOTE

Senate Joint Resolution 27 constitutes the latest effort to obtain approval of an executive agreement, signed at Ottawa, Canada, in 1941, to provide for joint construction of a deep waterway and enormous water-power works in the St. Lawrence River. This is substantially the same project which was embodied in a treaty signed in 1932, rejected by the Senate in 1934, and redrafted as a treaty in 1938. After failure to obtain approval as a treaty, which requires concurrence of two-thirds of the Senators present, the same project emerged in 1941, as an executive agreement, transmitted to both houses of Congress "for its information." In 1944, Senate Bill 1385, to approve this executive agreement through a majority vote of the two houses of Congress, likewise failed of passage. Thereafter, numerous attempts to secure approval have also failed. Thus Senate Joint Resolution 104 (79th Congress), Senate Joint Resolution

111 (80th Congress), and Senate Joint Resolution 99 (81st Congress), which purported to base the executive agreement upon Section XIII of the Boundary Waters Treaty of 1909 between the United States and Canada, failed to pass. Senate Joint Resolution 27, now before the Senate Committee on Foreign Relations of the 82nd Congress, is based upon the same theory as the three latter unsuccessful attempts to obtain approval of the 1941 St. Lawrence Executive Agreement.

It is the contention of the National St. Lawrence Project Conference that the attempt to secure approval of the project as an executive agreement through a simple majority vote constitutes an effort to accomplish an unconstitutional invasion of the treaty-making power and that the purported reliance upon the 1909 Boundary Waters Treaty is wholly without justification. During consideration of the legislation to obtain approval of the St. Lawrence Agreement in 1944 and 1946, the National St. Lawrence Project Conference submitted opinions by the late Mr. Edwin Borchard demonstrating the unconstitutional aspects of that legislation.

Upon the introduction of Senate Joint Resolution 99 in the 81st Congress, the National St. Lawrence Project Conference requested Mr. Kenneth F. Burgess of Chicago, Illinois, a member of the firm of Sidley, Austin, Burgess & Smith, to review the prior opinions in respect to the St. Lawrence Agreement and to appraise recent developments in this field. The results of Mr. Burgess' study have been prepared in memorandum form for submission to the Senate Committee on Foreign Relations.

NATIONAL ST. LAWRENCE PROJECT CONFERENCE.

I. ATTEMPTED AVOIDANCE OF CONSIDERATION OF ST. LAWRENCE PROJECT AS A TREATY IS REVIVAL OF EFFORTS TO CURTAIL SENATE'S AUTHORITY

Treaties may be made only "by and with the Advice and Consent of the Senate," "provided two thirds of the Senators present concur." Article II, Section 2, United States Constitution.

The Senate itself has the authority and duty to define and determine the subject matter which falls within its treaty-making powers. The judicial branch of the government has indicated on numerous occasions that the commands of the Constitution as to the treaty-making power are to be safeguarded by the Senate. The fact that the authority for determining the scope of the treatymaking power is in the Senate itself calls for great scrutiny by it of the nature of undertakings entered into, or to be entered into, with other Nations. Only in this way may the Senate define and protect its own jurisdiction and preserve the system of checks and balances which was created by the framers to safeguard the vital treaty-making power.

THE NOVEL THEORY THAT TREATIES AND EXECUTIVE AGREEMENTS ARE

INTERCHANGEABLE

2

In the years immediately preceding and during World War II, writers in the fields of political science and international law renewed their earlier criticisms of the action of the Senate in 1919 on the League of Nations. This culminated in determined efforts by certain groups to eliminate either directly or by indirection, the requirement that in international undertakings there be concurrence by two-thirds of the Senators present. Throughout the latter part of the decade of the thirties, and up to about 1945, there was a marked trend toward weakening the Senate's authority in this field. However, effective steps to check this trend were taken by the Senate itself with its growing understanding of the nature of the effort and its final implications.

1 See footnote 21, infra.

Holt, Treaties Defeated by the Senate (1933); Berdahl, The Policy of the United States with Respect to the League of Nations (1932); Colegrove, The American Senate and World Peace (1944) 90 ("Under the two-thirds rule, a minority of bitter partisans and personal enemies of the President were able to sabotage the peace system which America had persuaded Europe and America to accept").

The Senate's role in the treaty process has been defended by Professor Edwin Borchard, Against the Proposed Amendment as to the Ratification of Treaties (1944), 30 A. B. A. J. 608, 639, and in McClendon, The Two-Thirds Rule in Senate Action Upon Treaties (1932), 26 Am. J. Int'l L. 37, and Dangerfield, In Defense of the Senate: A Study in Treaty Making (1933).

The attack upon the two-thirds rule

The attack upon the Senate's traditional place in the making of treaties took two forms: (1) effort at outright amendment of the Constitution itself to eliminate the requirement that two-thirds of the Senators present concur in all treaties, and (2) promotion of the doctrine that the so-called executive agreement could and should be used to supplant the treaty as the vehicle for international undertakings. According to this doctrine, the decision rests solely with the Executive whether arrangements with foreign nations are to be made in the form of treaties submitted to the Senate for its advice and consent, or in the form of executive agreements which need only be submitted to Congress for its approval, and then only if the Executive in his discretion deems it desirable. Proponents of a constitutional amendment have not been the same persons or groups as those asserting that authority already existed to bypass the Senate through the medium of executive agreement. However, their arguments against continuing the requirement for senatorial concurrence by two-thirds present were identical. Professor Kenneth W. Colegrove, one of the strongest advocates of constitutional amendment, has criticized those who sought to accomplish their end by indirection, declaring that "the constant evasion of the Constitution cannot do otherwise than to breed a contempt for law that is dangerous for democratic institutions." " Similarly, the Commission on Organization of the Executive Branch of the Government (the Hoover Commission) stated in its Report on Foreign Affairs that the two-thirds rule has encouraged "circumvention by the executive by resort to the procedures of executive agreements and joint resolutions." (P. 8.) While the Commission considered the question of changing the constitutional method of adoption of treaties as outside its province, it did deplore the use of executive agreements as productive of friction between the Senate and House of Representatives. Ibid.

Others, however, who have denounced the Senate's function in treaty making as undemocratic and archaic have declared that it may be avoided altogether, simply by a more generous resort to the executive agreement, until the latter shall become recognized as the usual and normal form in which to cast all our international undertakings. The term "executive agreement," which has no basis in the Constitution, is applied generically to all international arrangements entered into by the United States without the advice and consent of the Senate, as is required of treaties under the Constitution. It is a catch-all term which covers many routine, technical and, from a policy point of view, unimportant agreements respecting postal matters, exchange of government publications, sale of surplus property and the like. The term is also used to describe temporary arrangements preliminary to the negotiation of a treaty or implementing the provisions of an effective treaty. Some executive agreements are entered into by the President on his own initiative and are submitted to Congress only for its "information," if at all, while others are made in response to acts of Congress, the short-term reciprocal trade agreements being examples of the latter.

Inception of the doctrine of interchangeability

The theories of those who hold the view that the executive agreement is interchangeable with the treaty were set forth extensively in a treatise published in, 1941 by the then Assistant Chief of the Treaties Division of the Department of State, Dr. Wallace McClure. Buttressed by a detailed recital of alleged precedents, Dr. McClure concluded that, based upon alleged constitutional usage, it is proper to dispose of all important and controversial matters in the international field by executive agreement, either with or without the approval of Congress. The treaty-making process, he asserted, "may well be quietly abandoned" except for unimportant and wholly uncontroversial acts

*

Colegrove, The American Senate and World Peace (1944), 110. "Although American constitutional law has had a remarkable growth through custom and Also, he has said, usage, the continuous practice of avoiding the fundamental law is dangerous. The use of executive agreements as a substitute for peace settlement is a palpable evasion of the fundamental law. The Constitution is clear and unambiguous on the subject of treaties." Ibid.

4

McDougal and Lans, Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy (1945), 54 Yale L. J. 181 and 534. purpose of this ponderous article is to demonstrate the availability of procedures to by-pass The the treaty process "if the minority controlled treaty-making procedure should for any reason become inadequate to meet the responsibilities of (the postwar) world." Professor Borchard wrote a vigorous reply to this article. his views in Shall the Executive Agreement Replace the Treaty? (1944) 53 Yale L. J. 664. Id. at 616. He has also stated

Id. at 195.

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