The Secretary of State shall transmit to the Congress the text of any international agreement, other than a treaty, to which the United States is a party as soon as practicable after such agreement has entered into force with respect to the United States but in no event later than sixty days thereafter. However, any such agreement the immediate public disclosure of which would, in the opinion of the President, be prejudicial to the national security of the United States shall not be so transmitted to the Congress but shall be transmitted to the Committee on Foreign Relations of the Senate and the Committee on International Relations of the House of Representatives under an appropriate injunction of secrecy to be removed only upon due notice from the President. Any Department or agency of the United States Government which enters into any international agreement on behalf of the United States shall transmit to the Department of State the text of such agreement not later than twenty days after such agreement has been signed.

The Case-Zablocki Act was signed into law by President Nixon on Aug. 22, 1972 (P.L. 92-403).

"Treaty Powers Resolution"

On January 10, 1977, Senator Dick Clark introduced in the Senate for himself, Senator Edward M. Kennedy and Senator Frank Church Senate Resolution 24, entitled the "Treaty Powers Resolution." The resolution would if adopted cause a point of order to lie in the Senate against any bill, joint resolution, or conference committee report authorizing or providing budget authority to implement any international agreement which the Senate by previous resolution had found should be submitted to the Senate as a treaty for its advice and consent to ratification. The text of the resolution, which contains provisions not found in the resolution of the same name introduced by Senator Clark in 1976, follows:

S. RES. 24

Resolved, That this resolution may be cited as the "Treaty Powers Resolution".

PURPOSE, FINDINGS, AND DECLARATION

SEC. 2. (a) It is the purpose of this resolution to fulfill the intent of the framers of the Constitution and to ensure, through use of the rule-making and legislative power of the Senate, that no international agreement constituting a treaty will be implemented by the Senate without its prior advice and consent to ratification of that agreement.

(b) The Senate finds that

(1) article II, section 2, clause 2 of the Constitution, empowers the President "by and with the advice and consent of the Senate to make treaties, provided two-thirds of the Senators present concur";

(2) the requirement for Senate advice and consent to treaties has in recent years been circumvented by the use of "executive agreements";

(3) the Senate may refuse to consider legislative measures to authorize or appropriate funds to implement those international agreements which, in its opinion, constitute treaties and to which the Senate has not given its advice and consent to ratification; and (4) article I, section 5, clause 2 of the Constitution grants to the Senate plenary power to "determine the rules of its proceedings". (c) The Senate declares that, under article II, section 2, clause 2, of the Constitution, any international agreement which

(1) involves a significant political, military, or economic commitment to a foreign country;

(2) has not been expressly authorized by statute or treaty which takes effect prior to the date on which such agreement takes effect; and

(3) is not entered into pursuant to emergency circumstances which jeopardize the national security; should be submitted to the Senate as a treaty for its advice and consent.

ADVICE

SEC. 3. It is the sense of the Senate that, in determining whether a particular international agreement should be submitted as a treaty under section 2(c) of this resolution, the President should, prior to and during the negotiation of such agreement, seek the advice of the Committee on Foreign Relations.

CONSENT

SEC. 4. (a) (1) Where the Senate, by resolution, finds that any international agreement hereafter entered into which has not been submitted to the Senate for its advice and consent to ratification as a treaty, should be so submitted under section 2(c) of this Resolution, it shall thereafter not be in order to consider any bill or joint resolution or any amendment thereto, or any report of a committee of conference, which authorizes or provides budget authority to implement such international agreement.

(2) Any such resolution shall be privileged in the same manner and to the same extent as a concurrent resolution of the type described in section 5 (c) of the War Powers Resolution is privileged under section 7 (a) and (b) of that law.

(3) This subsection shall not apply after such date as the Senate gives its advice and consent to ratification of such agreement as a treaty.

(b) Any (1) committee of the Senate which reports any bill or joint resolution, and (2) committee or conference which submits any conference report to the Senate, authorizing or providing budget authority to implement any such agreement, shall indicate in the committee report or joint statement filed therewith, as the case may be, that such budget authority is authorized or provided in such bill, resolution, or conference report.

123 Cong. Rec. S 342 (daily ed. Jan. 10, 1977).

For the text of the "Treaty Powers Resolution" introduced by Senator Clark in 1976, see the 1976 Digest, Ch. 5, § 5, pp. 256–263.

On June 27, 1977, Representative Clement J. Zablocki, Chairman of the Committee on International Relations of the House of Representatives, wrote Secretary Vance to express his views concerning the Treaty Powers Resolution. The text of Chairman Zablocki's letter follows:

The House of Representatives has, during recent times, enjoyed an active role in the approval of many major international agreements. Such important recent agreements as SALT I, the Sinai Accords, and the Turkish Bases Agreement, to name a few, have been submitted by the executive branch for approval by both Houses. The Committee on International Relations looks forward to the continuation of this practice by the present Administration.

There are many good reasons for following such a procedure in the absence of compelling reasons to choose the treaty form for such agreements. As you know, today Members of the House take a much deeper interest in foreign affairs. The impact of foreign affairs and international agreements on the lives of our constituents is much moro pervasive and obvious. As the elected representatives closest to the people, the House of Representatives can play a key role in providing the sense of consensus and public support which a sound policy requires. In particular, on agreements of special interest, the House is likely to resent exclusion and work its will on the agreement in any event, using the vehicle of the implementing legislation if necessary.

These reasons serve to explain why proposals such as the Treaty Powers Resolution sponsored by Senator Clark, S. Res. 24 which would attempt to exclude the House from the approval process of all major agreements, are so seriously out of step with the times and potentially divisive, as was the frequent resort to executive agreements by some previous administrations.

It is my hope that the Department of State perceives the wisdom of continuing along the flexible lines of including the House of Representatives where possible, in its international agreements practice. Of course, there may be very good reasons for submitting many important agreements as treaties and I certainly do not wish to imply that the treaty form per se is to be avoided. Rather, I hope that the Department will consider each agreement on its own merits and consult with the Congress not only on the content of the agreement, but on the form as well.

Dept. of State File No. P77 0100-1096.

The United States and the Soviet Union signed the Treaty on the Limitation of Anti-Ballistic Missile Systems (SALT I) on May 26, 1972 (TIAS 7503; 23 UST 3435; entered into force Oct. 3, 1972).

The United States and Egypt signed an Agreement concerning the establishment and operation of an Early Warning System in the Sinai on Sept. 1, 1975 (TIAS 8156; 26 UST 2278; entered into force Oct. 3, 1975).

The United States and Israel signed an Agreement concerning the establishment and operation of an Early Warning System in the Sinai on Sept. 1, 1975 (TIAS 8155; 26 UST 2271; entered into force Oct. 13, 1975).

For the text of the Turkish Bases Agreement, see H.R. Doc. No. 95-57, 95th Cong., 1st Sess., which contains a draft of a proposed joint resolution to authorize the President to implement the Agreement with the Government of the Republic of Turkey relative to Defense Cooperation pursuant to art. III of the North Atlantic Treaty in order to resist armed attack in the North Atlantic Treaty area. Congress did not pass this proposed joint resolution during 1977. For further information concerning this Agreement, see the 1976 Digest, Ch. 5, § 5, pp. 240-241.

On December 30, 1977, Douglas J. Bennet, Jr., Assistant Secretary for Congressional Relations, responded to an inquiry by Senator John J. Sparkman, Chairman of the Senate Committee on Foreign Relations, concerning Senate Resolution 24. Assistant Secretary Bennet's letter, which presented coordinated executive branch comments on the resolution introduced by Senator Clark, read in part as follows:

[U]nlike the earlier versions of this proposal, S. Res. 24 excludes from its coverage agreements expressly authorized by statute or treaty, and agreements entered into pursuant to emergency circumstances that jeopardize the national security.

This Administration is fully aware of the congressional questioning of the process of international agreement making, and is sensitive to the many issues that have been raised in the Senate and House of Representatives regarding treaties and executive agreements. I well understand that there have been occasions on which there has been insufficient interaction between the Congress and the executive branch on such matters in recent years, and that more timely and far-reaching consultation, initiated by the executive branch, I would have obviated some of the differences that have arisen.

It is clear that section 3 of S. Res. 24, requesting the President, in determining whether or not particular agreements should be in treaty form, to seek the advice of the Committee on Foreign Relations both prior to and during negotiation, is of cardinal importance. We believe that a mutually agreeable system of consultation has now been established, and that that system should be given an opportunity to demonstrate its effectiveness before further consideration is given to legislative measures. In our view, it would be most desirable for representatives of the Committee and the Department of State to continue to meet together to address such questions.

May I note that the Administration is making the foregoing views known to the Chairman of the House Committee on International Relations as well.

With respect to the provisions of S. Res. 24, we have concluded that, even in this modified form, the proposed resolution raises questions which lead us to oppose its adoption. In our view, S. Res. 24 would create a procedure, through modification of Senate rules, which would undercut efforts to create a harmonious climate of cooperation through consultation.

We are concerned not only that the adoption of such a procedure might become a source of discord between the Senate and the Executive, but that important international undertakings might be

jeopardized because of institutional conflict between the two Houses. While the exclusion from the coverage of S. Res. 24 of agreements expressly authorized by statute somewhat mitigates this concern, it does not eliminate it. In this regard it may be noted that Congressman Zablocki, Chairman of the House International Relations Committee, in a letter to the Secretary of State, characterized S. Res. 24 as an "attempt to exclude the House from the approval process of all major agreements" and as "seriously out of step with the times and potentially divisive." I have enclosed a copy of Chairman Zablocki's

letter.

The term "expressly" in section 2(c) (2) of S. Res. 24 also causes difficulty. Many statutes assume by their terms (rather than expressly authorize) executive agreements on a given subject, or authorize an international program that necessarily entails international agreements. An example is the Peace Corps Act, 22 U.S.C. 2501-2523. A strict construction of the term "expressly" by the Senate might also result in conflict with the House, as well as engendering uncertainty on the part of the executive branch, and of foreign governments, about the extent of the President's authority to implement the clear intent of existing statutes.

It may be noted that the proposed S. Res. 24 does not exempt from its purview agreements concluded pursuant to the President's constitutional powers, powers which the Supreme Court of the United States has expressly upheld. The proposed resolution would thus create confusion as to the scope of the President's power to conclude agreements.

Section 2(c) (3) of S. Res. 24 does exempt agreements "entered into pursuant to emergency circumstances which jeopardize the national security." But while this phrase would apply to certain executive agreements authorized by the Constitution, it illustrates the difficulty of the proposal. An emergency, such as an epidemic of a communicable disease or an earthquake in a foreign nation, may well indicate or require an immediate international agreement, and yet be unrelated to the national security of the United States. We do not believe that such agreements should be subject to the procedure of S. Res. 24.

In enabling the Senate to render a judgment concerning the form of a particular agreement and in providing for a parliamentary mechanism to enforce that judgment, S. Res. 24 would create, in practice, a determining role for the Senate. We feel that such a procedure would be inconsonant with the intent of Article II, section 2 of the Constitution, which grants the President the power to "make" treaties by and with the advice and consent of the Senate. Under S. Res. 24, the Senate would, in effect, exercise the power to make the final determination as to the modality of international agreements. In 1972, after lengthy hearings on the subject of executive agreements, the Subcommittee on the Separation of Powers of the Senate Judiciary Committee wrote the following:

American constitutional law recognizes, in the Constitution itself and in judicial opinion, three basic types of international agreement. First in order of importance is the treaty, an international bilateral or multilateral compact that requires consent by a two-thirds vote