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e. When it is desired to give the utmost formality to the commitment with a view to requiring similar formality on the part of the other government concerned, in the interest of long continued respect for its terms.

Of course, it is not always possible to determine ahead of time the exact extent of the commitments that may be reached and it is sometimes necessary to await the outcome of the negotiations before making the final determination whether the new arrangement shall be a treaty to be submitted for the advice and consent of the Senate or an executive agreement for which there exists an adequate legal basis or for which legislative approval should be sought.

When considered in the context of the foregoing, conclusion of the agreements with Portugal of December 9, 1971, and with Bahrain, of December 23, 1971, as executive agreements is clearly appropriate.

Examination of the texts of the two agreements shows that neither involves any new policy on the part of the United States. Neither contains any defense or political commitments by the United States. To have concluded these agreements as treaties would have given them a formality which implied an importance and a U.S. commitment which are neither involved nor desired. Both agreements involve the granting to the United States of the right to use facilities for our vessels, aircraft or personnel and the governing of the status of our personnel. These matters have been traditionally handled by executive agreement and uniquely fall within the authority of the President as Commander in Chief under the Constitution. In the case of the Azores, the agreement is concluded pursuant to Article 3 of the North Atlantic Treaty. To the extent that the agreements involve the expenditure of funds by the United States, they are subject to the authorization and appropriation of funds by the Congress.

DEPARTMENT OF STATE MEMORANDUM OF LAW-PROCEDURES FOR IMPLEMENTING THE COMMITMENTS CONTAINED IN THE NORTH ATLANTIC TREATY

In the course of hearings held on February 1, 1972, before the Senate Committee on Foreign Relations concerning the recently concluded agreements relating to facilities for the stationing of United States forces in the Azores and Bahrain, a question was raised concerning the extent to which the commitments undertaken by the United States in the North Atlantic Treaty, particularly those contained in Articles 3 and 5, are self-executing. We understand the issue to be the extent to which these commitments may be implemented by the President, without further action by the Congress. This question is considered in the light of the executive agreement with Portugal relating to the Azores facilities.

I. IMPLEMENTATION OF NORTH ATLANTIC TREATY COMMITMENTS

Article 11 of the North Atlantic Treaty expressly provides that the decisions concerning the means by which particular treaty provisions are given effect by this country are to be made in accordance with the constitutional processes of the parties. With respect to each category of implementing action, therefore, the question of procedure must be answered in accordance with United States constitutional procedure.

Article 5. This is the operative article of the North Atlantic Treaty. It provides:

The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defense recognized by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.

Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.

No action to implement the commitments undertaken pursuant to this article is required unless and until the condition requiring such action comes into being an armed attack against one of the parties in Europe or North America.

If this condition is fulfilled, the Treaty obligates each member to assist the party attacked. Such assistance is to be rendered individually and in concert. The nature of the assistance however, is not specified, and is left expressly to the discretion of the parties themselves, to be undertaken, as provided in Article 11, in accordance with their respective constitutional processes.

Various types of assistance may be envisioned. At the very lowest level, the United States could make diplomatic representations and issue statements condemning the attack. At a somewhat higher level of response, the United States could furnish arms and other material assistance to the party attacked. At the highest level, the United States could employ its own armed forces against the aggressor. The extent to which any of these actions would be undertaken by the President alone or would require Congressional authorization or approval would depend upon the respective powers of the President and the Congress under the Constitution.

As the Committee stated in its report to the Congress recommending approval of the North Atlantic Treaty :

Article 5 records what is a fact, namely, that an armed attack within the meaning of the treaty would in the present-day world constitute an attack upon the entire community comprising the parties to the treaty, including the United States. Accordingly, the President and Congress, each within their sphere of assigned constitutional responsibilities, would be expected to take all action necessary and appropriate to protect the United States against the consequences and dangers of an armed attack committed against any party to the Treaty. The committee does not believe it appropriate in this report to undertake to define the authority of the President to use the armed forces. Nothing in the treaty, however, including the provision that an attack against one shall be considered an attack against all, increases or decreases the constitutional powers of either the President or the Congress or changes the relationship between them.

Senate Executive Report No. 8, 81st Congress, 1st Session, p. 14.

Speaking more generally concerning this question, the Committee stated that: The committee wishes to emphasize the fact that the protective clause "in accordance with their respective constitutional processes" was placed in article 11 in order to leave no doubt that it applies not only to article 5, for example, but to every provision in the treaty. The safeguard is thus all-inclusive.

The treaty in no way affects the basic division of authority between the President and the Congress as defined in the Constitution. In no way does it alter the constitutional relationship between them. In particular, it does not increase, decrease, or change the power of the President as Commander-inChief of the armed forces or impair the full authority of Congress to declare war.

Except for the proposed foreign military assistance program, no legislation related to the treaty is presently contemplated or considered necessary. The treaty would constitute legislative authorization for our share of the expenses of the organization contemplated in article 9, but appropriations by Congress would be necessary. As the United States representatives on the council and the defense committee will have no authority to bind the United States Government, the committee believes that officials previously appointed with the confirmation of the Senate will not require further confirmation for these assignments.

Senate Executive Report No. 8, 81st Congress, 1st Session, pp. 18-19.

It will be observed from the statement in the first two of the above-quoted paragraphs that the treaty does not enlarge or impair any constitutional powers of either the President or the Congress. The third paragraph recognizes that application of the Treaty requires the exercise of some of the Constitutional powers of the Congress, particularly by the enactment of legislation. It necessarily follows that the President is also required to exercise his Constitutional powers in the application of the Treaty. The powers of neither branch of the Government are changed but implementation of the Treaty may necessarily involve actions by each within the sphere of its authority that would not be taken in the absence of the requirements of the Treaty.

Article 3. Although the basic "security commitment" provision of the North Atlantic Treaty is contained in Article 5, Article 3 is of great significance also. It provides:

In order more effectively to achieve the objectives of this Treaty, the Parties, separately and jointly, by means of continuous and effective self-help and mutual aid, will maintain and develop their individual and collective capacity to resist armed attack.

The actions taken pursuant to Article 3 must be taken, like those under Article 5, in accordance with the constitutional procedures of the parties. From the standpoint of the United States, the procedures to be followed depend upon the actions to be taken. They may involve the constitutional powers of both the President and the Congress. Certain joint arrangements undertaken pursuant to Article 3 can only be concluded by treaty, with the advice and consent of the Senate; the principal example of action of this type is the NATO Status of Forces Agreement (TIAS 2846), which contains various provisions altering federal and state legislation with respect to members of the armed forces of other NATO members who are stationed in the United States from time to time in connection with NATO affairs.

Other agreements, including agreements relating to the stationing of American forces in other countries, have traditionally been made by executive agreement. Such agreements effect no change in federal or state law; to the extent that they require authorizing legislation or appropriations to implement them, the agreements are made subject to the enactment of such legislation by the Congress. In every case, however, the necessary authorizing legislation has already been in existence, subject, of course, to the power in Congress to amend or repeal it. The United States has concluded executive agreements with every NATO country except Norway concerning the stationing of United States forces.

II. THE AZORES AGREEMENT

Under the terms of the letters signed by the Secretary of State on December 9, 1971, relating to assistance and credits for Portugal, the United States agrees, subject to the limitations of authorizing and appropriating legislation, to furnish certain grant assistance and certain credit opportunities to Portugal. Pursuant to the exchange of notes relating to facilities in the Azores, which was signed the same day, Portugal agrees to continue, in accordance with the Defense Agreement of 1951, to make facilities in the Azores available for the stationing of United States forces. The agreement does not differ significantly from other executive agreements concluded over a period of thirty years with other countries both before and after the conclusion of the North Atlantic Treaty. The agreement does not require the stationing of United States forces in the Azores, although it contemplates that they will be stationed there; the decision regarding stationing is made by the President, pursuant to his power as Commander-in-Chief of the military forces of the United States.

The legal authority for the conclusion of the Azores agreement consists of (1) the existing legislation pursuant to which the President is given the authority, subject to appropriations, to provide assistance to foreign countries, (2) the power of the President, as Commander-in-Chief, to arrange for the stationing of United States forces in accordance with the requirements of national security, and (3) the North Atlantic Treaty.

Under Article 3 of the North Atlantic Treaty, we have agreed to develop our individual and collective capacity to resist armed attack; where it appears that this purpose and the security of alliance members can be strengthened by the stationing of United States forces on the territory of another country, the President, in his capacity as Commander in Chief, has the power to carry out the Treaty by such a stationing of forces.

In the case of the Azores agreement, the Executive determined that nothing in the substance of the agreement imposed a legal or constitutional requirement that the agreement be submitted to the Senate for approval; thus, it could legally be concluded as an executive agreement. The Department further concluded that no other factors dictated the use of the treaty process for this agreement. Basing arrangements of this type have always been handled by executive agreement. The Azores agreement contains absolutely no new commitments to Portugal; it neither expands nor reduces the commitments undertaken to that country in the North Atlantic Treaty.

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NOTE BY THE DEPARTMENT OF STATE

Pursuant to Public Law 89-497, approved July 8, 1966 (80 Stat. 271; 1 U.S.C. 113)—

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. . . the Treaties and Other International Acts Series issued under the authority of the Secretary of State shall be competent evidence . . . of the treaties, international agreements other than treaties, and proclamations by the President of such treaties and international agreements other than treaties, as the case may be, therein contained, in all the courts of law and equity and of maritime jurisdiction, and in all the tribunals and public offices of the United States, and of the several States, without any further proof or authentication thereof."

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