so much to preserve the national security as to preserve the security of some politicians in the executive branch of the Government.

Counsel?

Professor MILLER. Just a couple of questions of the same type as I posed to Professor Moore and Professor Kelly.

I would start with an observation about Professor Falk's third point at the bottom of page 8, where he talks about the related issue involving questionable Executive interpretations of validly agreedupon earlier commitments to foreign governments. There is a question of the authority of the Executive, under the Reciprocal Trade Agreements Act of 1934, which some people thought brought up extremely serious constitutional questions, to enter into multilateral agreements on tariffs and trade when the statute itself really provided for bilateral agreement. I think that the question is really broader than what Professor Falk has suggested and would be obviated, in my judgment, by laying these before Congress so that it could take a look at them. That is mainly by way of observation in amplifying what Professor Falk was saying.

I think one of the important issues is the nature of the constitutional power of Congress to act in this area, Professor Falk. We have heard somewhat different points of view relating to the nature of the constitutional powers of Congress and the inherent powers of the Executive. Do you see any impediment in this bill that might stop Congress from acting in such a way?

Professor FALK. No, I see no serious impediment, Professor Miller, whatsoever. In my view, we are dealing with an area which is quite open constitutionally, where there are only very broad guidelines that have been laid down to vindicate both Executive and congressional claims. This proposed legislation, in my opinion falls easily within a reasonable construction of the congressional role in the foreign affairs process. There is no credible limitation that I can find in the Constitution upon the assertion of this role.

Professor MILLER. What about the question that has been raised by the previous witnesses about the nature of the inherent Executive powers?

Professor FALK. I think a basis does exist for a constitutional argument in support of what the Executive has been doing in recent years. This refers back in my mind in a way to what Senator Ervin referred to in terms of the contemplated friction between the branches of Government in this area. Therefore, ultimately if the executive branch chooses to challenge what seems to me to be a very reasonable effort to redress the imbalance that has grown up in this area, it would be up to the courts to try to resolve that contradictory interpretation of constitutional prerogative. However, existing interpretations of the Constitution in no sense preclude Congress from acting as this bill proposes, and the policy considerations in my view overwhelmingly dictate that Congress should act in this way.

Professor MILLER. Some people have suggested the question of whether or not there is power inherent in the President to recognize foreign governments which Congress, by passing a statute such as this, cannot touch.

Professor FALK. I don't see, first of all, how this would impair the President's capacity to recognize a foreign government. The act of

recognition seems to me to be quite separate from an executive agreement that might accompany a particular recognition. There is no need to embody the act of diplomatic recognition in a commitment to a foreign government. It seems to me to be the conferral of a status by the President, of a kind that doesn't seem to me to be questioned by this legislation, as I understand it.

Professor MILLER. Some witnesses have questioned the ability of Congress to reach the ancillary claim settlements provisions of the Litvinoff assignment, for example.

Professor FALK. As I say, if there are separate commitments. entered into with the foreign governments by the Executive, these seem to me to be reachable by Congress. The whole notion of whether they are in executive agreements or treaties seems to me to have no bearing on congressional responsibility to participate in assessing their relationship to the national interest. I think there should be a distinction made between the conferral of status by means of diplomatic recognition and accompanying agreements which I feel are appropriate subjects for congressional scrutiny.

Professor MILLER. One further question, Professor Falk. The policy question was in the sense of hampering the Executive. I have heard it argued by some that this bill is an undue intrusion, a major intervention by the legislature, into the Executive prerogative, and that it would unduly hamper the conduct of foreign affairs. Would you care to comment on that?

Professor FALK. Yes, Professor Miller. In my view, it would be a due hampering of the executive branch that has long been needed in relation to certain kinds of undertakings. The whole point, it seems to me, is that one wants to preserve a congressional role to object effectively to certain kinds of commitments, and there would be no point in this kind of legislation if there wasn't potential confrontation between the Executive's judgment of the national interest and the congressional judgment of the national interest. Underlying the constitutional discretion is the assumption, I think, that the national interest is much better served if there is an concurrence of the Executive and Congress in the development of commitments to foreign governments. We have suffered for some time from the absence of joint participation in this aspect of the commitment process. Professor MILLER. Thank you, sir.

I have no further questions.

Mr. EDMISTEN. Professor Falk, Dean Fisher and Professor Moore argued this morning that there should be cooperation between the two branches on these matters, and that probably we do not need written laws in this area. Do you believe that the executive branch would cooperate unless it were made to do so?

Professor FALK. This requires both a contextual answer and a structural answer. The recent history of the relationships makes me very skeptical about relying on the mere good faith of the executive branch in cooperating with Congress in sensitive areas of foreign affairs. Therefore I think the case for enacting guidelines that are more formal, more structured, more regularized is very strong and that the kind of legislative initiative embodied in S. 3475 goes a long way towards satisfying that need. Structurally, I think that in certain periods of history-I guess most dramatically during a war

like World War II-one could, in fact, rely on the cooperative relationship between Congress and the Executive, because considerable identity of view existed as to the policy goals of the country. But that is such an exceptional circumstance that it shouldn't provide the continuing basis for constitutional authority which needs to be structured to cope with periods of dissensus as well as period of consensus on the central foreign policy commitments of the country.

Senator ERVIN. It seems to me that in his Farewell Address to the American people. George Washington diagnosed a disease which seems to be endemic among occupants of public office. He characterized this disease as being "love of power and a proneness to abuse it.” In my observations of public officials, I have seen that there is a temptation to seek and a thirst and hunger for a little more power than the law gives them. In my judgment that was one of the reasons the Constitution was written to keep each department of gov ernment in its due balance. Would you not agree with me that where the Constitution entrusts a shared power, as it does in the field of foreign relations, to the Executive and to the Legislative, that neither the Executive nor the Legislative can be the sole judge of the limits of the power, and that for this reason, legislation which attempts to define what the legislative branch thinks is a true limit of its power would be helpful for the ultimate solution of problems in this field, because it would make it more certain that the courts which have the power to make the final interpretation would have more occasion to define exactly where the line of demarcation lies between the shared power of the President and the shared power of the Senate, or the shared power of the Congress?

Professor FALK. I agree very much, Senator.

Senator ERVIN. Thank you very much for a very illuminating and helpful exposition.

Professor FALK. Thank you.

Senator ERVIN. Unfortunately, tomorrow, though we have the hearing scheduled to resume, there is a Senate rule that if the Senate has a meeting of the full committee that the subcommittees can't meet. So we have to cancel the hearings tomorrow.

We are very grateful to all those who have participated in the hearings thus far, for the great help they have given us.

(Whereupon, at 4:33 p.m., the subcommittee adjourned, subject to the call of the Chair.)

BIOGRAPHICAL INFORMATION-RICHARD A. FALK

Home Address.-168 Prospect Avenue, Princeton, N.J. 08540.

Business Address.-Center of International Studies, 110 Corwin Hall, Princeton University, Princeton, N.J. 08540.

Date and Place of Birth.-New York City, Nov. 13, 1930.
Marital Status.-Married; 3 sons.

Education.-B.S. (economics), Wharton School, University of Pennsylvania, 1952; L1.B., Yale Law School, 1955; and J.S.D., Harvard University, 1962.

Experience-1955-61: Assistant, then Associate Professor, College of Law, Ohio State University; 1956: Admitted to New York Bar; 1958-59: Ford Foundation Fellow, Harvard Law School; 1961-62: Visiting Associate Professor, Princeton University; 1962-65: Associate Professor of International Law, Princeton University; 1965: McCosh Faculty Fellow, Princeton University: 1965: Professor (Albert G. Milbank Professor of International Law and Prac

tice), Princeton University; and 1968-69: Fellow, Center for Advanced Study in the Behavioral Sciences, Stanford, Calif.

Principal Professional Activities.-Vice President, American Society of International Law; Research Director, North American Team, World Order Models, Project; Co-Director, Project on the Future of the International Legal Order; Editorial Board, Foreign Policy Magazine and American Journal of International Law; Chairman, Consultative Council, Lawyers' Committee on American Policy Toward Vietnam; Member, Committee on the Environment, National Policy Council of the Democratic Party; Member, Executive Council, Federation of American Scientists; Member, Board of Directors, Foreign Policy Association; Member, Board of Trustees, Fund for Peace and Procedural Aspects of International Law Institute.

PUBLICATION-BOOKS

Law, War and Morality in the Contemporary World, 120 pp., Praeger, 1963. The Role of Domestic Courts in the International Legal Order, 184 pp., Syracuse University Press, 1964.

Security Disarmament, ed. with Richard J. Barnet, Princeton University Press, 1965.

The Strategy of World Order, ed. with Saul Mendlovitz, 4 Vols., New York, World Law Fund, 1966.

International Law and Organization: An Introductory Reader, Ed. with Wolfram Hanrieder, 346 pp., Philadelphia, J. B. Lippincott Co., 1968.

Legal Order in a Violent World, 610 pp., Princeton University Press, 1968. Neutralization and World Politics, with C. E. Black, Klaus Knorr and Oran R. Young, Princeton University Press, 1968.

The New States and International Legal Order, 102 pp., Leyden, A. W. Sijthoff, 1968.

Editor, The Vietnam War and International Law, Princeton University Press, Vol. I, 1968, Vol. II, 1969.

The Future of the International Legal Order, ed. with Cyril E. Black, Princeton University Press, Vol. 1, 1969, Vol. II, 1970, Vol. III, 1971.

The Status of Law in International Society, Princeton, Princeton University Press, 1970.

This Endangered Planet, New York, Random House, 1971.

Crimes of War, ed. with R. J. Lifton and G. Kolko, New York, Random House, 1971.

The International Law of Civil War, ed., Baltimore, Johns Hopkins University Press, 1971.

CHAPTERS IN BOOKS

“Jurisdiction, Immunities and Acts of State: Suggestions for a Modified Approach," in Essays on International Jurisdiction, 1961.

"Revolutionarly Nations and the Pattern of International Legal Order," 310-31, in The Revolution in World Politics, ed. Morton A. Kaplan, John Wiley, 1962.

"Space Espionage and World Order: A Consideration of the Samos-Midas Program, 45-82 in Essays on Espionage and International Law, Ohio State U. Press.

"The Legitimacy of Legislative Intervention by the United States," 31-62, in Essays on Intervention, ed. R. J. Stanger, Ohio State U. Press, 1964.

"Janus Tormented: The International Law of Internal War," 185-248, in International Aspects of Civil Strife, ed., J. N. Rosennau, Princeton University Press, 1964.

"Toward a Responsible Procedure for the National Assertion of Protested Claims to Use Space," 91-120, in H. Taubenfeld, ed., Space and Society, 1964. World Law and Human Conflict," 227-249, in Elton B. McNeil, ed., The Nature of Human Conflict, Englewood Cliffs, N.J., Prentice-Hall, Inc., 1965.

"The Sabbatino Controversy,” 1–70, in Lyman M. Tondel, Jr., ed., The Aftermath of Sabbatino, Background Papers and Proceedings of the Seventh Hammarskjold Forum, Dobbs Ferry, N.Y., Oceana Publications, Inc., 1965.

"World Revolution and International Order," 154-177, in Revolution, NOMOS VIII, 1966.

"Confrontation Diplomacy: Indonesia's Campaign to Crush Malaysia," 127-174, in Lawrence Scheinman and David Wilkinson, International Law and Political Crisis: An Analytic Casebook, Boston, Little, Brown and Co., 1968.

"International Law and the Conduct of the Vietnam War," 22-27, in In the Name of America, New York, Clergy and Laymen Concerned About Vietnam, 1968.

"Stress-Seeking and the Legal Order: Some Positive Correlations," 239-263, in Samuel Z. Klausner, ed., Why Man Takes Chances, Garden City, New York, Doubleday and Co., 1968.

"Restraining United States Policy," 54-72, 79-80, in New Directions in U.S. Foreign Policy, Foreign Policy Association, New York.

"External Legitimacy and Developing Nations, in Willard A. Beling and George O. Totten, eds., Developing Nations: Quest for a Model, 226–243, New York, Van Nostrand, Reinhold, 1970.

"The Beirut Raid and the International Law of Retaliation," reprinted in Morton A. Kaplan, ed., Great Issues of International Politics, 32-61, Chicago, Aldine Publishers, 1970.

"Preface," in Minerva, M. Etzioni, The Majority of One, 9-14, Beverly Hills, Calif., Sage Publications, 1970.

"Renunciation of Nuclear Weapons Use," in Bennett Boskey and Mason Willrich, eds., Nuclear Proliferation: Prospects, 133-145, New York, Dunellen, 1971.

ARTICLE-1959

"The United States and the Doctrine of Nonintervention in the Internal Affairs of Independent States," Howard Law Journal, V (June 1959), 163–189. "International Jurisdiction: Horizontal and Vertical Conceptions of Legal Order, Temple Law Quarterly, XXXII, (Spring 1959), 295–320.

"Some Criticism of C. Wilfred Jenks' Approach to International Law,” (with Saul H. Mendlovitz), Rutgers Law Review, XIV (Fall 1959), 1–36.

"The Relevance of Contending Systems of Public Order to the Delimitation of Legal Competence," Proceedings of the American Society of International Law (1959), 173–182.

1961

"American Intervention in Cuba and the Rule of Law," Ohio State Lar Journal, XXII (Spring 1961), 546-585.

"The Relations of Law to Culture, Power and Justice," Ethics, LXII (October 1961), 12 27.

"The Bellagio Conference on Legal Positivism," (with Samuel I. Shuman), Journal of Legal Education, XIV (1961), 213–228; translated into Italian as 'Un Colloquio sul Positivismo Guiridico,' Revista di Diritto Civile, VII (1961), 3-17.

"Toward a Theory of the Participation of Domestic Courts in the International Legal Order: A Critique of Banco Nacional de Cuba v. Sabbatino," Rutgers Law Review, XVI (1961), 1–41.

1962

"The Predicament of Edmond Cahn," Howard Law Journal (Spring 1962). "Historical Tendencies, Modernizing and Revolutionary Nations and the International Legal Order," Howard Law Journal, 8 (1962), 128-151.

1963

"Some Thoughts in Support of a No-First-Use Proposal," 37-56, in Proposal for No First Use of Nuclear Weapons, published by the Center of International Studies (Princeton University) as Policy Memorandum 28, September 1963.

1964

"The Adequacy of Contemporary Theories of International Law-Gaps in Legal Thinking," Virginia Law Review, L (1964).

"The Complexity of Sabbatino," The American Journal of International Law, Vol. 58, No. 4 (October 1964), 935-951.