the peace. With respect to the pacific settlement of disputes, the Council has only the power of recommendation. Moreover, with respect to enforcement measures, the character and amount of military assistance which members of the organization place at the disposal of the Council will be governed by the terms of special agreements which are provided for in article 43.13

Once the Security Council has determined the existence of any threat to the peace, breach of the peace or any aggressive action, it can either recommend or decide what measures shall be taken under articles 41 and 42 of the Charter. Article 41 covers measures which do not involve the use of armed force, whereas Article 42 includes action by military forces "necessary to maintain or restore international peace and security." These military forces are to be made available to the Security Council, according to Article 43, by the member states through "special agreements.

914

No agreements have been made under article 43, and, consequently, no forces have been "made available" to the Security Council. As far as the United States is concerned, Section 6 of the United Nations Participation Act furnishes authority to the President to negotiate a special agreement or agreements with the Security Council providing armed forces to be made available to the Council under article 43 of the Charter. Such agreements are made subject to approval of the Congress. Section 6 further provides that no authorization of the Congress is necessary for the President to implement any action that may be taken by the Security Council under article 42 of the Charter.i But since the U.S. has concluded no agreements under article 43 of the Charter, Section 6 of the United Nations Participation Act has not been applied. The net impact of article 42, on the United States, then, is that while the United States has obligations for the use of its

13 Report to the President on the resolutions of the San Francisco Conference on the Charter of the Unite d Nations, Department of State Publication 2349, 1945, p. 79. 14 Articles 41, 42, and 43 read as follows:

ARTICLE 41

The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

ARTICLE 42

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

ARTICLE 43

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. They 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.

15 Sec. 6 is 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.'

forces under this article, these obligations remain inoperative until some agreement for their use is approved by the Congress and comes into force.

There remains one other ground under the Charter for the use of armed forces: the general obligation to "support the United Nations." This is not, however, a legal obligation; it is more in the nature of an affirmative action in support of a general policy. In this situation, the use of armed forces is not an obligation upon the United States, but again a determination to be made by the United States on essentially nonlegal grounds. It is this category of action which includes the "peacekeeping" operations which have been developed under the United Nations.

When not specifically called for or recommended under the processes of the United Nations, the use of armed force is forbidden by the Charter, except under certain circumstances. These provisions are explained by the Legal Adviser of the Department of State as follows: The Charter of the United Nations, concluded at the end of World War II, imposed an important limitation on the use of force by United Nations members. Article 2, paragraph 4, provides:

"All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations."

In addition, the charter embodied a system of international peacekeeping through the organs of the United Nations. Article 24 summarizes these structural arrangements in stating that the United Nations members:

"*** confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf."

However, the charter expressly states in article 51 that the remaining provisions of the charter-including the limitation of article 2, paragraph 4, and the creation of United Nations machinery to keep the peace-in no way diminish the inherent right of self-defense against armed attack. Article 51 provides:

"Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security."

Thus, article 51 restates and preserves, for member states in the situations covered by the article, a long-recognized principle of international law. The article is a "saving clause" designed to make clear that no other provision in the charter shall be interpreted to impair the inherent right of self-defense referred to in article 51.16

While the Charter might impose certain international obligations on member states, it does not address itself to the internal procedures by which they determine and fulfill these obligations. Therefore, nothing in the Charter affects the basic division of powers under the U.S. Constitution for the use of armed forces abroad.

III. THE CONSTITUTIONAL FRAMEWORK

Whatever the obligations and rights of the United States under treaties and other elements of international law, the determination of who speaks and acts as "the Government" of the United States, is entirely a matter of internal constitutional and statutory arrangement. Meeker, Leonard C., op cit., p. 475.

In this respect, "the Government" is the National Government, not the State governments. The Constitution specifically prohibits the States from exercising powers of foreign relations; and the States cannot, without the consent of Congress, "engage in war, unless actually invaded or in such imminent danger as will not admit of delay.' " Nor can private citizens engage in diplomatic activities. This has been prohibited by law since 1799.2

Federal power in foreign affairs, according to the Supreme Court in the Curtiss-Wright case, is "in origin and essential character different from that over internal affairs * **3 The Court said:

*** the investment of the Federal Government with the powers of external sovereignty did not depend upon affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the Federal Government as necessary concomitants of nationality.

Within the National Government, the executive and the legislative branches have all the constitutional power and responsibility for the conduct of relations with other countries.

A. THE SHARING OF POWER BETWEEN THE PRESIDENT AND CONGRESS

The President's powers in foreign relations as set forth in the Constitution are:

Article II, section 2:

*** He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls * * *.

Article II, section 3:

*** he shall receive Ambassadors and other public Ministers; .

Article II, section 3, provides that "he shall take Care that the Laws be faithfully executed." So far as relations with other nations are concerned, "the laws" includes treaty obligations; any obligation inferable from the Constitution; and the rights, duties, and obligations growing out of the Constitution itself, international relations and all the protection implied by the nature of government under the Constitution."

Article II, section 2, specifies that:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual Service of the United States * * *

The role of the President as the representative of the Nation in foreign relations was enunciated by the Supreme Court in 1936 in United States v. Curtiss-Wright Export Corporation. The Court said:

Not only, as we have shown, is the Federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited. In this vast external realm,

1 Art. 1, sec. 10.

Act of January 30, 1799, entitled "An act to prevent usurpation of Executive functions" (1 Stat. 613). This is the so-called Logan Act, enacted after George Logan, a Philadelphia Quaker, had undertaken private diplomatic negotiations with France in an effort to avert war between the United States and France. The Logan Act is still law. See U.S. Code, title 18, sec. 953.

U.S. v. Curtiss-Wright Export Corporation (1936), 299 U.S. 304, p. 319.

4 Ibid., p. 318.

Taft, W. H., Our Chief Magistrate and His Powers, New York, 1925, pp. 87, 88, 91, citing In re Neagle (1889), 135 U.S. 1; U.S. v. Logan (1892), 144 U.S. 263.

with its important, complicated, delicate, and manifold problems, the President alone has the power to speak or listen as a representative of the Nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, "The President is the sole organ of the Nation in its external relations, and its sole representative with foreign nations" (Annals, 6th Cong., column 613).

The powers of Congress primarily concerned with foreign affairs are the following, found in article I, section 8, of the Constitution:

The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; ***

To borrow money on the credit of the United States;

To regulate Commerce with Foreign Nations, * * *

To establish a uniform Rule of Naturalization, * * *

To coin Money, regulate the Value thereof, and of Foreign Coin, ***

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, *** To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. Article I, section 9, provides that

no money shall be drawn from the treasury but in consequence of appropriations made by law.

In addition to these legislative powers, the Senate participates in the treaty-making process and the appointment power.

All of these powers give the Congress a considerable voice in the determination of foreign policy and defense policy and the actions taken in support of them. Congress enacts the laws for the President. to execute, it raises and supports the armies of which the President is Commander in Chief; in it, through the "power of the purse," rests a vast and extensive power to determine the scale of government structure and staffing.

Thus, in the fields of foreign affairs and national defense, as in other fields of governmental activity, many powers are shared by or divided between the executive and legislative branches. It is evident from the enumeration of executive and legislative powers that both branches have a constitutional voice in the major decisions affecting the country's foreign relations and military defense.

Edward S. Corwin has written:

What the Constitution does, and all that it does, is to confer upon the President certain powers capable of affecting our foreign relations, and certain other powers of the same general nature upon the Senate, and still other such powers upon Congress; but which of these organs shall have the decisive and final voice in determining the course of the American nation is left for events to resolve. $299 U.S. 304, pp. 319-320.

All of which amounts to saying that the Constitution, considered only for its affirmative grants of power which are capable of affecting the issue, is an invitation to struggle for the privilege of directing American foreign policy. In such a struggle the President has, it is true, certain great advantages, which are pointed out by Jay in The Federalist; the unity of the office, its capacity for secrecy and dispatch and its superior sources of information; to which should be added the fact that it is always on hand and ready for action, whereas the houses of Congress are in adjournment much of the time.

But despite all this, actual practice under the Constitution has shown that while the President is usually in a position to propose, the Senate and Congress are often in a technical position at least to dispose. The verdict of history, in short, is that the power to determine the substantive content of American foreign policy is a divided power, with the lion's share falling usually to the President, though by no means always.7

In the areas in which the powers relating to foreign policy are shared by Congress and the President and in which considerable conflict has developed, such as the sending of troops abroad, the issues have not been resolved by judicial decisions. According to one study:

The resolution of these problems has largely been left to historical practice. The courts have from the beginning shown a reluctance to enter this classic separation-of-powers debate and, on the particular issue of the proper allocation of the power to embark on war, have been virtually silent. What answer there is to the constitutional issue must come from the interpretations provided through history by the two concerned parties themselves-the President and Congress.8

The study points out that in recent attempts to bring the constitutionality of the President's actions in Vietnam before the courts, the cases have been dismissed as involving political questions.

b. nature of the presiDENT'S POWER AS COMMANDER IN CHIEF Of particular relevance to the issue of sending troops abroad is the role of the President as Commander in Chief. As previously noted, under Article II, section 2 of the Constitution, "the President shall be Commander in Chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual Service of the United States." The nature of the President's power, as Commander in Chief, over the armed forces of the United States has been variously defined by the courts and students of constitutional law.

The Constitution confers the office of Commander in Chief on the President, who nevertheless remains a civilian. While his powers as Commander in Chief are directed toward the military, the President is a civil officer.10 In the case of Youngston Sheet and Tube Co. v. Sawyer, Mr. Justice Jackson expands upon the significance of this provision:

There are indications that the Constitution did not contemplate that the title Commander-in-Chief of the Army and Navy will constitute him also Commanderin-Chief of the country, its industries and its inhabitants. He has no monopoly of "war powers," whatever they are. While Congress cannot deprive the President of the command of the army and navy, only Congress can provide him an army or navy to command. It is also empowered to make rules for the "Government and Regulation of land and naval forces," by which it may to some unknown extent impinge upon even command functions.

7 Corwin, Edward S., op. cit., p. 171.

Notes. Congress, the President, and the Power to Commit Armed Forces to Combat. 81 Harvard Law Review (1968) 1771, at p. 1778.

Ibid.

10 U.S. Congress, Senate. The Constitution of the United States of America. Analysis and interpretation. 88th Cong. 1st sess. S. Doc. 39. Washington, U.S. Govt. Print. Off., 1964. p. 454.