Pending the coming into force of special agrements referred to in article 43, the Charter of the United Nations (art. 106) stipulates that the parties-China, Soviet Russia, United Kingdom, United States-to the Moscow Declaration of October 30, 1943, and France shall 'consult with one another * * * with a view to such joint action on behalf of the Organization as may be necessary for the purpose of maintaining international peace and security.' "One may consider as legally incorrect the repeated statements of present administration spokesmen that American troops in Korea are part of a United Nations army. In view of the mandatory provisions of article 106 of the United Nations Charter, it is even legally hazardous, though perhaps politically quite convenient, to accept the version that Americans are in Korea on behalf of the United Nations, since joint action under article 106 of the United Nations Charter presupposes agreement on such action between the Governments of China, France, the United Kingdom, the United States, and Soviet Russia. Lacking such agreement, it is difficult to support the administration's 'War by Executive Order' on the basis of existing international law. "When the United Nations Charter was before the Congress in 1945, the thought was expressed that membership might be construed as an advance authorization for the use of American armed forces in warlike activities for the preservation of international peace and security. It was feared that congressional approval of the Charter might involve a surrender by Congress of its control over the Armed Forces of the United States and thus could result in the commitment of American troops to war without a declaration of war by Congress. In an attempt to allay these apprehensions, Mr. John Foster Dulles, of New York, who had been one of the advisers of the United States delegation at the San Francisco Conference, informed the Senate Foreign Relations Committee: "Under our Constitution, the President, and the President alone, directs the current conduct of foreign affairs. But there can be no declaration of war except by the Congress. That is our internal procedure; it will remain our internal procedure; and all the world knows that fact. "It may or it may not hereafter become useful to decide by legislation whether or not the use of our military contingent to enforce peace is the equivalent of a declaration of war. But surely we can better determine that when we know what it is that we are talking about. Today there is no military contingent. After the Organization is established the Organization may negotiate with the members for military contingents. That agreement for military contingents, so far as the United States is concerned, will be subject to the ratification and consent of the Senate.' 2 21 "At the conclusion of his remarks, Mr. Dulles was questioned by several members of the Senate Foreign Relations Committee. The Senator from Colorado [Mr. MILLIKIN] and Mr. Dulles engaged in the following colloquy: "If I understood you correctly, Mr. Dulles, I thought you said that the Senate will have an opportunity to ratify the special agreement having to do with our contribution of force and material. "Senator MILLIKIN. Is that your opinion? "Mr. DULLES. That is not only my opinion but it is expressly stated in the Charter that the agreements are subject to ratification by the states in accordance with their constitutional processes. 66 'Senator MILLIKIN. Then it is your opinion that to comply with our constitutional processes that separate agreement would have to come to the Senate for ratification? "Mr. DULLES. It is, and that was the view of the American delegation. I think there is no doubt whatever about that. "Senator MILLIKIN. Is there any doubt about that, Mr. Dulles? "Mr. DULLES. No. "'Senator MILLIKIN. And no disagreement of opinion on that? "Mr. DULLES. No.'" Later in the questioning Mr. Dulles stated: "It is clearly my view-and it was the view of the entire United States delegation-that the agreement which will provide for the United States military contingent will have to be negotiated and then submitted to the Senate for ratification in the same way as the treaty.' 21 U.S. Senate, hearings before the Committee on Foreign Relations, 79th Cong., 1st sess. (U.S. Government Printing Office, Washington, 1945). "On July 28, 1945, the last day of the debate about the Charter of the United Nations on the floor of the United States Senate, the following letter from the President of the United States, then in attendance at the Potsdam Conference, was read to the Senate: "During the debate in the Senate upon the matter of the Senate's giving its advice and consent to the Charter of the United Nations, the question arose as to the method to be followed in obtaining approval of the special agreements with the Security Council referred to in article 43 of the Charter. It was stated by many Senators that this might be done in the United States either by treaty or by approval of a majority of both Houses of Congress. It was also stated that the initiative in this matter rested with the President, and that it was most important to know before action was taken on the Charter which course was to be pursued. "When any such agreement or agreements are negotiated, it will be my purpose to ask the Congress by appropriate legislation to approve them.' "The United Nations Charter became operative on October 24, 1945. No additional legislation was required to make its self-executing provisions the supreme law of the land.22 The enactment of the United Nations Participation Act of 1945 gave effect to the non-self-executing provisions of the Charter. Section 6 of that act provides 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.' "The Senate Foreign Relations Committee's report" which accompanied the United Nations Participation Act when it was brought before the Senate in November 1945, contained the following statement in respect to the question of congressional approval to troop commitments to the planned United Nations Security Force: ""The committee believes that it is desirable to determine the question once and for all, and that it is appropriate to specify that the military agreement or agreements should be submitted for approval to the Congress.' "Even the most casual reading of section 6 of the United Nations Participation Act indicates that agreements between the Government of the United States and the Security Council for contributions of the United States Forces to the United Nations shall be subject to congressional approval. It will be noted, too, that section 6 authorizes the President to make available to the Security Council 'on its call' only such Armed Forces and services as are provided for in such congressionally-approved agreements. Then, by the proviso to section 6, the Congress specifically denies the President authority to furnish Armed Forces and services over and above those specifically provided for and specifically authorized by Congress in the agreements which it has approved. "The record is clear. Article 43 of the United Nations Charter requires that commitments of Armed Forces by the United States to the United Nations be made in pursuance of specific agreements between the Security Council and the United States. The laws of the United States require that such agreements not be entered into by the Government of the United States without the approval of the Congress of the United States; and the President of the United States pledged his solemn word that such agreements would be submitted to the Congress for its 22 Hackworth, 5 Digest of International Law 177 ff.; see also p. 191 and citations therein. 23 Public Law 264, 79th Cong., 1st sess. (59 Stat. 619), as amended by Public Law 341, 81st Cong.. 1st sess. (63 Stat. 734). 24 Rept. No. 717, 79th Cong., 1st sess. approval. To date no such agreement has been negotiated between the Security Council and the Government of the United States. Yet the President of the United States has ordered the Armed Forces of the United States into a conflict in Korea which is ostensibly being fought under the aegis of the United Nations. Neither has the President sought, nor does he appear to intend to seek, congressional approval of his action. Thus the United States is at war by order of the President. "However, there can be no retreat from reality. As the Korean conflict passes into its second year, there can no longer be any doubt that the United States is involved in a de facto war. The President circumvented both the Constitution of the United States and the Charter of the United Nations and bypassed the Congress when he committed the Armed Forces of the United States to war in Korea. However, neither the United States nor the token forces of some members of the United Nations can now abandon Korea to the forces of Communistinspired armed aggression. Thus there is but one alternative: Decide upon the goal in Korea and then proceed to its achievement." [From The Mandate for Change, by Dwight D. Eisenhower] CHAPTER XIV-CHAOS IN INDOCHINA Enemy advances, we retreat; enemy halts, we harass; enemy tires, we attack; enemy retreats, we pursue. -Mao Tse-tung In 1954 the seven-and-a-half-year-old war in Indochina came to an end. It was a war which at its beginning in 1946 seemed to be only a "local disturbance.” But several small countries and finally many nations were to some extent caught up in it. Merely listing the highlights of the communications, conferences, negotiations, and military tactics of those many months would be a long process. Yet such a list could give only a faint idea of the anxious hours and days when the leaders of the Free World tried to find among themselves at least a temporary, workable unity—when diverse intentions, plans, and purposes caused chaos, misunderstanding, and tragedy in that unfortunate land. (p. 332) As I viewed the prospects of military intervention in the relative calm of early 1954, it seemed clear that if three basic requirements were fulfilled, the United States could properly and effectively render real help in winning the war. The first requirement was a legal right under international law; second, was a favorable climate of Free World opinion; and third, favorable action by the Congress. (p. 340) The ever-present, persistent, gnawing possibility was that of employing our ground forces in Indochina. The war had been going on for a long time and unless the French were successful a great many people could be swept under Communist rule. We had helped the French in the ways open to us, and they were losing ground; still, they were convinced that only they could devise successful military operations there. Nevertheless, I let it be known that I would never agree to send our ground troops as mere reinforcements for French units, to be used only as they saw fit. Part of my fundamental concept of the Presidency is that we have a constitutional government and only when there is a sudden, unforeseen emergency should the President put us into war without congressional action. (p. 345.) In Paris, Foster decided to bring the British position into the clear. In a conference with Anthony Eden, Foster told him, unequivocally, that major combat action by United States forces in Indochina would need the consent of Congress, but that Congress would be more amenable if assured that Britain agreed to participate in unified action. (p. 351.) Vice President Nixon had made a speech on April 16 which suggested the qualified possibility that we might one day have to send troops.4 Naturally this In a talk before the American Society of Newspaper Editors, he said in a speech "not for attribution" and thereafter widely attributed, that “. if to avoid further Communist expansion in Asia and Indochina, we must take the risk now by putting our boys in, I think the Executive has to take the politically unpopular decision and do it." was always a possibility; the question was under constant study. At my news conference the question was posed respecting a rider introduced in the House on an appropriations bill the day before, seeking to limit the President's authority to dispatch troops anywhere in the world without the consent of Congress. I replied that an appropriations bill was not the place to legislate Executive responsibility, and far beyond this in importance was that such an artificial restriction would damage the flexibility of the President in moving to sustain the interests of the United States wherever necessary. I would have vetoed the bill if presented and made this known. The rider failed of passage. The CHAIRMAN. The committee is adjourned. (Whereupon, at 1:20 p.m., the committee adjourned.) U.S. COMMITMENTS TO FOREIGN POWERS TUESDAY, SEPTEMBER 19, 1967 UNITED STATES SENATE, WASHINGTON, D.C. The committee met, pursuant to recess, at 10:15 a.m., in room 4221, New Senate Office Building, Senator J. W. Fulbright (chairman) presiding. Present: Senators Fulbright, Sparkman, Morse, Gore, Lausche, Hickenlooper, Aiken, and Case. The CHAIRMAN. The committee will come to order. The Committee on Foreign Relations this morning is continuing its open hearings on Senate Resolution 151, relating to definition of a national commitment by the United States to a foreign country. In keeping with its usual practices, the committee is giving an opportunity to be heard on the pending measure to those members of the public who request time for the purpose. The witnesses today are Judge Albert Lévitt, of Manchester, Mass.: Mr. George Montross, of Detroit, Mich.; and Mrs. Cecil Broy, of Alexandria, Va. Judge Lévitt, will you come forward, please? PERSONAL FACTS CONCERNING ALBERT LÉVITT JUDICIAL EXPERIENCE Judge, United States District Court for The Virgin Islands. 1935–36 (During this period Mr. Lévitt not only carried out the usual duties of a Judge of a Federal District Court, but, because of the peculiar laws of the Virgin Islands, he served as The Chief Justice of The Virgin Islands and administered the local laws of the archipelago. In addition he compiled the laws of The Virgin Islands and assisted in writing the new organic act for the Virgin Islands. He also aided in having the new organic act adopted by the Congress of The United States.) GOVERNMENT SERVICE Albert Lévitt has served in the government of The United States under five Presidents as follows. Special Assistant to The Attorney General of The United States, (1923-24; 1933-35; 1936–37). In these terms of service Mr. Lévitt gave his special attentions to problems of international and comparative law. He was the liaison officer between the Department of Justice and the other government departments in many matters. He created and was the head of the section of international law in the Department of Justice. He was the final reviewing officer for matters relating to the Alien Property Custodian. He made, directed and assisted in the making of, many studies in international and comparative law. He also gave a great deal of attention and study to American Constitutional Law as it related to govern. |