Lot 60 D 224

The Legal Adviser ( Hackworth ) to the Secretary of State

Comment on Draft of the Proposed Joint Four-Power Declaration

The Secretary: 1. Paragraph numbered 1 of the proposed Declaration1 states that their united action, pledged for the prosecution of the war, will be continued for the “organization and maintenance of peace and security.”

This merely states the purpose to continue by united action cooperation of the Four Powers for the organization and maintenance of peace and security. There is no question but that the President has authority to make this pledge in so far as concerns the war period. While the pledge carries over into the post-war period, it is probably unobjectionable for the reason that it contains no definite commitment regarding any particular course of action. It is tantamount to a statement of foreign policy.

2. Paragraph numbered 2, declaring that the Four Powers will act together in matters relating to the surrender and disarmament of the enemy and to any occupation of enemy territory and the territory held by the enemy, would seem to be well within the prerogatives of the President.

3. Paragraph numbered 3 states that the Four Powers will take all measures deemed by them to be necessary to provide against any violation of the requirements imposed upon their present enemies.

This paragraph does not contain a time limitation and might well carry over into the post-war period. The “measures deemed by them to be necessary” might consist of the use of force, and if such use of force were deemed to be necessary after the establishment of peace, there would be presented the question whether the President acting alone could execute the measures and hence whether he should have now, or wait until later, the approval of the Senate or Congress.

4. Paragraph numbered 4 states that they recognize the necessity of establishing at the earliest practicable date a general international organization for the maintenance of international peace and security.

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This paragraph does not present a definite commitment and hence it presents no constitutional difficulty.

5. Paragraph numbered 5 states that for the purpose of maintaining international peace and security “pending the reestablishment of law and order and the inauguration of a general system of security, they will consult and act jointly in behalf of the community of nations.”

The only definite commitment here made relates to joint action. While such joint action is to be for the purpose of maintaining peace and security for an indefinite period of time and hence carries over into the post-war era, there is no definite commitment as to the form of action to be taken. It is to be presumed, however, that in “maintaining international peace and security” the use of force may become necessary. The Senate or the Congress may conceivably contend that they have a right to be consulted with respect to any such pledge. The President would answer that he, of course, would expect to consult the Congress before employing armed force and that forms of action may be available to him short of force which would be sufficient.

6. Paragraph numbered 6 states that in connection with the “foregoing purpose” they will establish a technical commission to advise them on the military problems involved, including the composition and strength of the forces available in an emergency arising from a threat to the peace.

This provision would seem clearly to indicate that the possibility of the use of force is in mind; that the employment of force may well take place after peace has been established. No reason, however, is perceived why the President may not receive advice through a commission or otherwise as to the status of available armed forces and that is all the paragraph purports to accomplish. He could answer critics of the Declaration along the lines of the answer suggested for paragraph 5.

7. Paragraph numbered 7 states that they will not employ their military forces within the territories of other States except for the purposes envisaged in the Declaration and after joint consultation and agreement.

This is a self-denying undertaking. It is intended to afford some degree of assurance to disarmed and weak States. The purposes “envisaged in this declaration” for which they may employ their military forces in the territories of other countries are, so far as post-war pledges are concerned, (a) those relating to violation of requirements imposed upon their enemies, and (b) the maintenance of peace and security pending the inauguration of a general system of security.

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8. Paragraph numbered 8 states that they will confer and cooperate to bring about a practicable general agreement with respect to the regulation of armaments in the post-war period.

The President has complete authority to make such a commitment.

It is to be noted that the first clause of the Preamble to the Declaration takes the form of a Declaration by the Governments of the respective countries. It might disarm certain critics if the Declaration were by the heads of the Governments instead of by the Governments.

Green H. Hackworth
  1. Ante, p. 692.