customary to make the coming into force of the Treaty dependent upon ratification and to stage a debate about it in Parliament at some point after signature, so that, if Parliament clearly disapproved, it would still be open to Her Majesty's Government not to ratify the Agreement. That is the general position. So the answer to the noble Lord's Question is that, leaving aside the cases where a Treaty requires domestic legislation to become effective, it must rest with the Government of the day to decide whether a particular Treaty should be reserved for Parliamentary approval. Lord VANSITTART. I thank the noble Lord for his statement and I hope I may ask for time to digest it. In view of the repeated outbursts of General Neguib, a procedure which admitted of no discussion before we were faced with an accomplished fact might not be acceptable to some of us. Viscount SWINTON. It is always a matter of opinion by any individual as to whether or not the Government of the day should reserve a Treaty for Parliamentary approval before it ratifies it; but, of course, the Government of the day, and nobody else, can take that responsibility. It does so having regard to all the circumstances and with the knowledge that Parliamentary resources in relation to the Government are not exhausted, and that if Parliament disapproves of the action of the Government in advising the exercise of the Royal Prerogative, it is quite open to Parliament to pass a vote of censure on the Government, and that would be the end of the Government. (Treaty Affairs, Office of the Legal Adviser, Department of State, Washington, April 2, 1953.) MEMORANDUM RELATING TO THE MAKING OF INTERNATIONAL AGREEMENTS OTHER THAN TREATIES There has been much discussion concerning the subject of so-called executive agreements. Often during the past few years it has been stated that the practice of entering into executive agreements has been adopted in order to circumvent the requirements of the United States Constitution (art. II, sec. 2) respecting the making of treaties. It has been asserted that large and increasing numbers of executive agreements are being made, and comparatively few treaties. It has been intimated that fundamental constitutional rights of Americans are being bartered away, or at least threatened, by the making of international agreements. It is hoped that the following discussion will clarify the situation. The subject of so-called executive agreements is a complex one. Generalized statements which would imply that there is any concerted attempt, desire, or inclination to nullify or circumvent the treatymaking provision in the Constitution are made without a clear appreciation of the normal processes of conducting foreign relations. There is nothing new in the practice of making various international agreements other than treaties. It has been the practice of this Government, during the whole period of the Nation's existence, in intercourse with foreign governments, to enter into agreements other than treaties to deal with many problems or questions on an executive or administrative level, where this could be done consistently with, and within the framework of, existing law. Throughout the history of this country, both treaties and international agreements other than treaties have been made in conducting its foreign relations. The existence and validity of international agreements other than treaties has been recognized not only by the Supreme Court of the United States but also in statutes of the United States. Such agreements effected prior to 1950 were published in the United States Statutes at Large pursuant to a law reading as follows inter alia: "The Secretary of State shall cause to be compiled, edited, indexed, and published, the United States Statutes at Large, which shall contain *** all treaties to which the United States is a party that have been proclaimed since the date of the adjournment of the regular session of Congress next preceding; all international agreements other than treaties to which the United States is a party that have been signed, proclaimed, or with reference to which any other final formality has been executed, since that date; *** The United States Statutes at Large shall be legal evidence of the laws, concurrent resolutions, treaties, international agreements other than treaties, proclamations by the President, and proposed or ratified amendments to the Constitution of the United States therein contained, in all the courts of the United States, the several States, and the Territories and insular possessions of the United States." (Italics supplied.) (1 U. S. C. 30.) By Public Law 821, 81st Congress, approved September 23, 1950, that law was amended so as to provide for the publication of treaties and other international agreements separately from the Statutes at Large but with an equivalent legal effectiveness. That law reads as follows inter alia: "The Secretary of State shall cause to be compiled, edited, indexed, and published, beginning as of January 1, 1950, a compilation entitled 'United States Treaties and Other International Agreements,' which shall contain all treaties to which the United States is a party that have been proclaimed during each calendar year, and all international agreements other than treaties to which the United States is a party that have been signed, proclaimed, or with reference to which any other final formality has been executed, during each calendar year. The said United States Treaties and Other International Agreements shall be legal evidence of the treaties, international agreements other than treaties, and proclamations by the President of such treaties and agreements, therein contained, in all the courts of the United States, the several States, and the Territories and insular possessions of the United States" (1 U. S. C. 112a). (Italics supplied.] Pursuant to Public Law 821, treaties and other international agreements effected in 1950 and subsequent years will be published in annual volumes of Treaties and Other International Agreements. At the same time, the practice will continue of printing the authentic texts of agreements, in all the languages in which effected, in the official series issued by the Department of State, namely, Treaties and Other International Acts Series (referred to commonly as TIAS). The series consists of a separate leaflet or pamphlet print, separately numbered, of each agreement. Beginning with certain agreements made in 1945, the TIAS replaced the two series previously issued, namely, the Treaty Series and the Executive Agreement Series. The TIAS numbers began with 1501, the numbers in the TS and the EAS having reached an aggregate of 1500 (994 in the TS and 506 in the EAS). Publication of international agreements in the official series is routine and fairly expeditious. Complex editing and publication problems have from time to time delayed publication of such agreements in the volumes of the statutes. It should be pointed out also that article 102 of the Charter of the United Nations, to which the United States is a party (59 Stat. 1031; Treaty Series 993), provides as follows: "1. Every treaty and every international agreement entered into by any member of the United Nations after the present charter comes into force shall as soon as possible be registered with the Secretariat and published by it." The United States has made and continues to make a diligent effort to comply with that requirement. Following such registration, a treaty or other agreement is published in the United Nations Treaty Series. It is believed that some factual material regarding the making of international agreements, in addition to the foregoing information with respect to their history and publication, may contribute to a clearer understanding of the situation. Treaties continue to be made in accordance with the treaty-making provision in the Constitution. International agreements continue to be made, in appropriate cases, in accordance with constitutional and legislative authority of the President in conducting the foreign relations of the United States. As already indicated, there is considerable misunderstanding as to the nature of so-called executive agreements. It may be well to point out, first of all, that the term "executive agreement" is a misnomer as applied to all "international agreements other than treaties." In its inception the terms was used merely as a succinct means of reference to agreements other than treaties, but it has acquired through misuse a popular connotation that has cast an unfortunate and unwarranted cloud over the making of such agreements. Actually, such agreements may be considered broadly in three categories: (1) Agreements or understandings entered into with foreign governments pursuant to or in accordance with specific direction or authorization by the Congress; (2) agreements or understandings made with foreign governments and sanctioned or implemented by congressional legislation; and (3) agreements or understandings made with foreign governments by the Executive under and in accordand with the Executive's constitutional power. It is readily demonstrated that categories (1) and (2), where the agree ments or understandings are made pursuant to or within the contemplation and framework of existing law, or are sanctioned or implemented by legislative action, constitute the vast majority of international agreements other than treaties. In a true sense, agreements in these two categories might well be designated Legislative-Executive agreements to indicate more clearly that, for all practical and legal purposes, both the legislative and executive branches of the Government have shared in the making of the agreements. The Treaty Series, the Executive Agreement Series, and the Treaties and Other International Acts Series afford a ready source of material for verifiable analysis. Publication of the EAS began in 1928, following the organization of a Treaty Division in the Department of State. There was not, prior to that time, any coordinated effort to publish all international agreements other than treaties or so-called executive agreements. Some had been published theretofore in the Treaty Series, but apparently had not been considered essential to publish regularly all administrative arrangements made on a diplomatic level with foreign governments. A logical starting point, therefore, for the analysis of data, is the beginning of the publication of the Executive Agreement Series, in which a few agreements dating back to 1922 were included. As indicated heretofore, the TIAS replaced and continued in a unified series the TS and EAS, so that all TIAS prints of international agreements other than treaties are included for the purpose of this analysis. As is always the case, there are now in process of publication in the series a number of agreements. All agreements which have been assigned numbers in the TIAS up to the present time are included in the anlysis, in order that the most complete picture possible may be obtained. It may be well to mention also, in order that the figures below may be better appreciated in relation to the over-all situation, that the addition of 1021 numbers in the TIAS representing international agreements other than treaties to the 506 in the EAS shows a total of 1,527 such agreements in both series as of the date of this memorandum. A comparison of this figure with the number of treaties brought into force during the some period will be made hereinafter. (1) Agreements made under legislative authority Among the best-known examples of agreements entered into and given effect pursuant to legislative direction or authority or, to the same effect, within the precise limitations and framework of legislation or treaty, are the reciprocal trade agreements made under and in conformity with the Trade Agreements Act (or that act as amended), the lend-lease and lend-lease settlement agreements made under and in conformity with pertinent legislation, the economic and technical cooperation and rehabilitation agreements made under the laws enacted during recent years, advisory military and naval mission agreements made with Latin American countries under and in conformity with pertinent legislation, and many others. It is useful, for the purposes of the analysis below, to classify agreements into groups according to the legal authority upon which they rest. The number of agreements in each group, as shown by the official series (EAS and TIAS), is indicated. Agricultural workers: Agreements with Mexico regarding temporary migration of Mexican workers into the United States to engage in agricultural work___ 57 Sta. 70, 73; 58 Stat. 15; 59 Stat 645; 61 Stat. 55; 50 U. S. C. app. 1355 (g). Agriculture and food production: Cooperative programs for agriculture, development of productive resources, foodstuffs production, agricultural and related experiments and investigations__. Institute of Inter-American Affairs Act; 61 Stat. 780. 11 49 Aid to Greece and Turkey: Arrangements for tendering financial, material, and technical assistance__ 3 61 Stat. 103, 610; 62 Stat. 157. American dead: Agreements regarding disposition and care of remains of deceased persons who served in United States Armed Forces, interment and removal of bodies; cemeteries, memorials, etc--- 10 50 U. S. C. app. 1811-1819; 60 Stat. 317; 36 U. S. C. 121, 123–132, 138138b; 61 Stat. 779. Anthropology: Cooperation in the conduct of anthropological research and investigation-. 4 Act to authorize the President to render closer and more effective the relationship between American republics; 53 Stat. 1290; 22 U. S. C. 501-502. Civil air routes and services: Establishment and modification of civil air Agreements made within the framework of International Civil Avia- Civil defense: Agreement with Canada relating to coordination of meas- Public Law 920, 81st Cong.; 64 Stat. 1245. Claims Settlement of certain war-damage claims. Act to provide for prompt settlement of claims for damages occasioned Copyright and industrial property: Extension of time for fulfilling conditions and formalities of copy- 55 Stat. 732; 17 U. S. C. 8. Restoring certain industrial-property rights affected by World War II, 60 Stat. 568, 940; 61 Stat. 413. Interchange of patent rights-- Act to promote the defense of the United States (Lend-Lease Defense assistance, mutual: Agreements for assistance in mutual defense, Mutual Defense Assistance Act of 1949; 63 Stat. 714. Mutual Security Economic and technical cooperation: Economic and technical cooperation ments Economic Cooperation Act of 1948 (Foreign Assistance Act of 1948); 62 Stat. 137, 150, 153. Foreign Aid Appropriation Act, 1949; 62 Stat. 1054. Educational programs: Cooperative educational programs to promote interAmerican understanding through interchange of educators and educational ideas and methods; and also agreements for educational foundations or commissions (Fulbright) -- Institute of Inter-American Affairs Act; 61 Stat. 780. Surplus Property Act of 1944, as amended; 60 Stat. 754; Public Law 584, 79th Cong. Fisheries: Cooperative studies and investigations regarding marine fisheries---. Act to authorize the President to render closer and more effective the Health and sanitation: Cooperative programs for health and sanitation__ Act to provide for cooperation with Central American republics; Interim aid: Arrangements for extending interim aid to certain foreign countries Foreign Aid Act of 1947; 61 Stat. 934, 941, 942. Joint resolution making appropriations for foreign aid; 62 Stat. 109. Economic Cooperation Act of 1948; 62 Stat. 137, 150, 151. Lend lease: Agreements relating to principles applying to mutual aid for Military service: Agreements permitting, on reciprocal basis, a national of Based on United States Selective Training and Service Act of 1940, Missions, Military, Naval, Air Force Advisory: Agreements for detail Act to authorize the President to detail officers and enlisted men of Missions, miscellaneous: Assignment of technical civil aviation missions. 52 Stat. 442; 53 Stat. 652; 62 Stat. 6; 5 U. S. C. 118e. Assignment of Census Mission___ Assignment of Cultural Cooperation Commission___ Act to authorize the President to render closer and more effec- Official publications: Reciprocal exchange of official publications through Joint resolution to regulate the distribution of public documents to Passport-visa fees and requirements: Reciprocal abolition or reduction of Act to authorize the President in certain cases to modify visa fees; 43 Stat. 976; 8 U. S. C. 202 (i). Philippines: Agreements on various topics made with the Philippines, including such matters as trade, public-roads program, air-navigation program, fishery program, coast and geodetic program, meteorological program, military bases, cemeteries, settlements regarding acts of United States Armed Forces, war-damage claims, military assistance, copyright, grants-in-aid for hospitals and medical care for veterans; occupation and transfer of military reservations, transfer of certain vessels, etc___ Philippine Trade Act of 1946 (60 Stat. 151); Philippine Rehabilitation Act of 1946, as amended (60 Stat. 128, 136, 805; 62 Stat. 4; 50 U. S. C. 1751-1763, 1784); Republic of the Philippines Military Assistance Act of 1946 (60 Stat. 315; 50 U. S. C. app. 1861-1866); act of March 24, 1934 (48 Stat. 456; 48 U. S. C. 1240) and joint resolution of June 29, 1944 (58 Stat. 625; 48 U. S. C. 1235a); act of July 1, 1948 (62 Stat. 1210); act of June 26, 1946 (60 Stat. 315); and various other acts, including (61 Stat. 653, 655; 17 U. S. C. 1 (e) and 9 (b)), and (2 U. S. C. 31; 5 U. S. C. 631a; 48 U. S. C. 1232 et seq.) Postal: Postal conventions and agreements-- Such agreements are negotiated and concluded by the Postmaster General by and with the advice and consent of the President, under authority of law; Rev. Stat., sec. 398. (The comparatively small number shown above is due to the fact that until recent years it had not been the practice to publish postal arrangements, except comprehensive conventions, in the series, such arrangements being published only by the Post Office Department. Such arrangements are now being regularly published in the TIAS.) 47 24 101 1 1 46 38 18 18 |