CRS Annotated Constitution

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International Organizations.—Overlapping of the treaty–making power through congressional–executive cooperation in international agreements is also demonstrated by the use of resolutions approving the United States joining of international organizations408 and participating in international conventions.409

Executive Agreements Authorized by Treaties

Arbitration Agreements.—In 1904–1905, Secretary of State John Hay negotiated a series of treaties providing for the general arbitration of international disputes. Article II of the treaty with Great Britain, for example, provided as follows: “In each individual case the High Contracting Parties, before appealing to the Permanent Court of Arbitration, shall conclude a special Agreement defining clearly the matter in dispute and the scope of the powers of the Arbitrators, and fixing the periods for the formation of the Arbitral Tribunal and the several stages of the procedure.”410 The Senate approved the British treaty by the constitutional majority having, however, first amended it by substituting the word “treaty” for “agreement.” President Theodore Roosevelt, characterizing the “ratification” as equivalent to rejection, sent the treaties to repose in the archives. “As a matter of historical practice,” Dr. McClure comments, “the compromis under which disputes have been arbitrated include both treaties and executive agreements in goodly[p.499]numbers,”411 a statement supported by both Willoughby and Moore.412

Agreements Under the United Nations Charter.—Article 43 of the United Nations Charter provides: “1. All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security. 2. Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided. 3. The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. The y shall be concluded between the Security Council and Members or between the Security Council and groups of Members and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes.”413 This time the Senate did not boggle over the word “agreement.”

The United Nations Participation Act of December 20, 1945, implements these provisions as follows: “The President is authorized to negotiate a special agreement or agreements with the Security Council which shall be subject to the approval of the Congress by appropriate Act or joint resolution, providing for the numbers and types of armed forces, their degree of readiness and general location, and the nature of facilities and assistance, including rights of passage, to be made available to the Security Council on its call for the purpose of maintaining international peace and security in accordance with article 43 of said Charter. The President shall not be deemed to require the authorization of the Congress to make available to the Security Council on its call in order to take action under article 42 of said Charter and pursuant to such special agreement or agreements the armed forces, facilities, or assistance provided for therein: Provided, That nothing herein contained shall be construed as an authorization to the President by the Congress to make available to the Security Council for such purpose armed forces, facilities, or assistance in addition to the forces, facilities, and assistance provided for in such special agreement or agreements.”414


Status of Forces Agreements.—Negotiated pursuant to authorizations contained in treaties between the United States and foreign nations in the territory of which American troops and their dependents are stationed, these Agreements afford the United States a qualified privilege, which may be waived, of trying by court martial soldiers and their dependents charged with commission of offenses normally within the exclusive, criminal jurisdiction of the foreign signatory power. When the United States, in conformity with the waiver clause in such an Agreement, consented to the trial in a Japanese court of a soldier charged with causing the death of a Japanese woman on a firing range in that country, the Court could “find no constitutional barrier” to such action.415 However, at least five of the Supreme Court Justices were persuaded to reject at length the contention that such Agreements could sustain, as necessary and proper for their effectuation, implementing legislation subsequently found by the Court to contravene constitutional guaranties set forth in the Bill of Rights.416

Executive Agreements on the Sole Constitutional Authority of the President

Many types of executive agreements comprise the ordinary daily grist of the diplomatic mill. Among these are such as apply to minor territorial adjustments, boundary rectifications, the policing of boundaries, the regulation of fishing rights, private pecuniary claims against another government or its nationals, in Story’s words, “the mere private rights of sovereignty.”417 Crandall lists scores of such agreements entered into with other governments by the authorization of the President.418 Such agreements were ordinarily directed to particular and comparatively trivial disputes and by the settlement they effect of these cease ipso facto to be operative. Also, there are such time–honored diplomatic devices as the “protocol” which marks a stage in the negotiation of a treaty, and the modus vivendi, which is designed to serve as a temporary substitute for one. Executive agreements become of constitutional significance when they constitute a determinative factor of future foreign policy and hence of the country’s destiny. In consequence particularly of our participation in World War II and our immersion in the conditions of international tension which prevailed both be[p.501]fore and after the war, Presidents have entered into agreements with other governments some of which have approximated temporary alliances. It cannot be justly said, however, that in so doing they have acted without considerable support from precedent.

An early instance of executive treaty–making was the agreement by which President Monroe in 1817 brought about a delimitation of armaments on the Great Lakes. The arrangement was effected by an exchange of notes, which nearly a year later were laid before the Senate with a query as to whether it was within the President’s power, or whether advice and consent of the Senate wwas required. The Senate approved the agreement by the required two–thirds vote, and it was forthwith proclaimed by the President without there having been a formal exchange of ratifications.419 Of a kindred type, and owing much to the President’s capacity as Commander–in–Chief, was a series of agreements entered into with Mexico between 1882 and 1896 according each country the right to pursue marauding Indians across the common border.420 Commenting on such an agreement, the Court remarked, a bit uncertainly: “While no act of Congress authorizes the executive department to permit the introduction of foreign troops, the power to give such permission without legislative assent was probably assumed to exist from the authority of the President as commander in chief of the military and naval forces of the United States. It may be doubted, however, whether such power could be extended to the apprehension of deserters [from foreign vessels] in the absence of positive legislation to that effect.”421 Justice Gray and three other Justices were of the opinion that such action by the President must rest upon express treaty or statute.422

Notable expansion of presidential power in this field first became manifest in the administration of President McKinley. At the outset of war with Spain, the President proclaimed that the United States would consider itself bound for the duration by the last three principles of the Declaration of Paris, a course which, as Professor Wright observes, “would doubtless go far toward establishing these three principles as international law obligatory upon the United States in future wars.”423 Hostilities with Spain were brought to an end in August, 1898, by an armistice the conditions[p.502]of which largely determined the succeeding treaty of peace,424 just as did the Armistice of November 11, 1918, determine in great measure the conditions of the final peace with Germany in 1918. It was also President McKinley who in 1900, relying on his own sole authority as Commander–in–Chief, contributed a land force of 5,000 men and a naval force to cooperate with similar contingents from other Powers to rescue the legations in Peking from the Boxers; a year later, again without consulting either Congress or the Senate, he accepted for the United States the Boxer Indemnity Protocol between China and the intervening Powers.425 Commenting on the Peking protocol Willoughby quotes with approval the following remark: “This case is interesting, because it shows how the force of circumstances compelled us to adopt the European practice with reference to an international agreement, which, aside from the indemnity question, was almost entirely political in character . . . purely political treaties are, under constitutional practice in Europe, usually made by the executive alone. The situation in China, however, abundantly justified President McKinley in not submitting the protocol to the Senate. The remoteness of Peking, the jealousies between the allies, and the shifting evasive tactics of the Chinese Government, would have made impossible anything but an agreement on the spot.”426

It was during this period, too, that John Hay, as McKinley’s Secretary of State, initiated his “Open Door” policy, by notes to Great Britain, Germany, and Russia, which were soon followed by similar notes to France, Italy and Japan. These in substance asked the recipients to declare formally that they would not seek to enlarge their respective interests in China at the expense of any of the others; and all responded favorably.427 Then, in 1905, the first Roosevelt, seeking to arrive at a diplomatic understanding with Japan, instigated an exchange of opinions between Secretary of War Taft, then in the Far East, and Count Katsura, amounting to a secret treaty, by which the Roosevelt administration assented to the establishment by Japan of a military protectorate in Korea.428 Three years later, Secretary of State Root and the Japanese ambassador at Washington entered into the Root–Takahira Agreement to uphold the status quo in the Pacific and maintain the principle of equal opportunity for commerce and industry in China.429 Meantime, in 1907, by a “Gentleman’s Agreement,” the Mikado’s govern[p.503]ment had agreed to curb the emigration of Japanese subjects to the United States, thereby relieving the Washington government from the necessity of taking action that would have cost Japan loss of face. The final result of this series of executive agreements touching American relations in and with the Far East was the product of President Wilson’s diplomacy. This was the Lansing–Ishii Agreement, embodied in an exchange of letters dated November 2, 1917, by which the United States recognized Japan’s “special interests” in China, and Japan assented to the principle of the Open Door in that country.430

The Litvinov Agreement.—The executive agreement attained its modern development as an instrument of foreign policy under President Franklin D. Roosevelt, at times threatening to replace the treaty–making power, not formally but in effect, as a determinative element in the field of foreign policy. The President’s first important utilization of the executive agreement device took the form of an exchange of notes on November 16, 1933, with Maxim M. Litvinov, the USSR Commissar for Foreign Affairs, whereby American recognition was extended to the Soviet Union and certain pledges made by each official.431

The Hull–Lothian Agreement.—With the fall of France in June, 1940, President Roosevelt entered that summer into two executive agreements the total effect of which was to transform the role of the United States from one of strict neutrality toward the European war to one of semi–belligerency. The first agreement was with Canada and provided for the creation of a Permanent Joint Board on Defense which would “consider in the broad sense the defense of the north half of the Western Hemisphere.”432 Second, and more important than the first, was the Hull–Lothian Agreement of September 2, 1940, under which, in return for the lease for ninety–nine years of certain sites for naval bases in the British West Atlantic, the United States handed over to the British Government fifty over–age destroyers which had been reconditioned and recommissioned.433 And on April 9, 1941, the State Department, in consideration of the just–completed German occupation of Denmark, entered into an executive agreement with the Danish min[p.504]ister in Washington, whereby the United States acquired the right to occupy Greenland for purposes of defense.434


408 E.g., 48 Stat. 1182 (1934), authorizing the President to accept membership for the United States in the International Labor Organization.
409 See E. Corwin, op. cit., n.44, 216.
410 W. McClure, op. cit., n.393, 13–14.
411 Id., 14.
412 1 W. Willoughby, op. cit., n.294, 543.
413 A Decade of American Foreign Policy, S. Doc. No. 123, 81st Cong., 1st Sess., 126 (1950).
414 Id., 158.
415 Wilson v. Girard, 354 U.S. 524 (1957).
416 Reid v. Covert, 354 U.S. 1, 16–17 (1957) (plurality opinion); id., 66 (Justice Harlan concurring).
417 3 J. Story, Commentaries on the Constitution of the United States (Boston: 1833), 1397.
418 S. Crandall, op. cit., n.264, ch. 8; see also W. McClure, op. cit., n.393, chs. 1, 2.
419 Id., 49–50.
420 Id., 81–82.
421 Tucker v. Alexandroff, 183 U.S. 424, 435 (1902).
422 Id., 467. The first of these conventions, signed July 29, 1882, had asserted its constitutionality in very positive terms. Q. Wright, op. cit., n.302, 239 (quoting Watts v. United States, 1 Terr.288,294 (1870)).
423 Id., 245.
424 S. Crandall, op. cit., n.264, 103–104.
425 Id., 104.
426 1 W. Willoughby, op. cit., n.294, 539.
427 W. McClure, op. cit., n.393, 98.
428 Id., 96–97.
429 Id., 98–99.
430 Id., 99–100.
431 Id., 140–144.
432 Id., 391.
433 Id., 391–393. Attorney General Jackson’s defense of the presidential power to enter into the arrangement placed great reliance on the President’s “inherent” powers under the Commander–in–Chief clause and as sole organ of foreign relations but ultimately found adequate statutory authority to take the steps deemed desirable. 39 Atty. Gen.484 (1940).
434 4 State Bull.443 (1941).
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