835.00/8–2046
The Chief of the Division of River Plate Affairs (Mann) to the Ambassador in Argentina (Messersmith)
Dear Mr. Ambassador: Thank you for your letter of August 2021 regarding the necessity for ratification by Argentina of the United Nations Charter and of the Final Act of the Mexico City Conference.
I believe there has never been any doubt in anyone’s mind about the necessity of Argentina’s ratifying the United Nations Charter in whatever way its Constitution requires. Article 110, paragraph 1 of the Charter expressly provides:
“The present charter shall be ratified by the signatory states in accordance with their respective constitutional processes.”
The question was whether, in the absence of an Argentine Congress, Argentina could legally ratify the United Nations Charter by mere executive decree or whether congressional consent to ratification was necessary because of the provision in the Argentine Constitution which reserved to the Congress the exclusive right to approve “treaties”,
This question was important in 1945 because it related directly to the question of whether Argentina was a member in good standing of the United Nations. You will recall that Mr. Braden’s position was, in substance, that it was a mistake to admit Argentina to the United Nations before it had discharged its inter-American obligations. He suggested that the ground lost at the San Francisco [Conference] could, in part at least, be recovered by holding that Argentina was not a member in good standing because it had not obtained congressional ratification as required by its constitution and Article 110 of the Charter. The documents mentioned in your letter and in your despatches 565 and 583 of August 13 and August 15, 194622 all appear to relate to this particular question. Certainly this is true of the Embassy’s telegrams 2113 of September 8, 1945 and 1498 of July 11, 1945 and Cabot’s despatch 436 of July 31, 1945.22 If the other documents to which you refer bear on other questions, I would appreciate having copies of them or, if they are already in the Department, their numbers and dates so that we can locate them. (The documents which we are not able to find are the Department’s telegram of August 3, 1945; the Embassy’s reply thereto; the Department’s telegram inquiring “what stage such action constitutes in the ratification processes under the constitutional [Page 318] processes of the country”; Post’s memorandum of July 2, 1945; and Dr. Ameghino’s July 28, 1945 statement to the press.)24
The Department’s statements to which you refer related to a very separate question of whether it was also necessary for the Argentine Congress to ratify the Final Act of the Mexico City Conference.
The Final Act of Mexico City, unlike the United Nations Charter, does not specifically provide for ratification. As a matter of fact, the only basis, of which I am aware, upon which an argument could be built that congressional ratification was necessary is that the Mexico City Act was a “treaty”. It is interesting to note in this connection that none of the other American republics—all or nearly all of which have constitutional provisions reserving to Congress the right to ratify treaties—found it necessary to obtain congressional consent to ratification of the Mexico City Act, which is a pretty clear indication that none considered the resolutions, declarations, and recommendations of Mexico City to be “treaties”. Moreover, I believe the customary practice has not been to regard resolutions, declarations, and recommendations of inter-American meetings of Foreign Ministers as treaties requiring congressional ratification. If there are exceptions to this practice, I am told they are based on domestic political expediency rather than constitutional necessity or arise out of the special nature of isolated resolutions which seem to have treaty characteristics. I do not know of any precedent that the wartime resolutions relating to enemy property and persons have special treaty characteristics, and I believe that the Argentines themselves did not submit to their Congress similar resolutions of the Rio and Washington Conferences.
In view of these considerations, there was some surprise at the suggestion that the replacement and repatriation programs in Argentina were dependent upon congressional ratification of the Mexico City Act. The surprise was somewhat accentuated by our recollection that the United States had sponsored Argentina’s admission to the United Nations in the belief that Argentina was already bound by its signature of the Mexico City Act to the same extent as were the other American republics. I believe that the Argentine Government itself did not suggest that congressional ratification was necessary until more than a year after Mexico City.
It would appear that the most probable explanation of the Argentine attitude in this respect is that the Government, for reasons of domestic politics, wished to spread the responsibility for carrying out the programs which had already been agreed to. At least that is the impression one gets from Foreign Minister Bramuglia’s statements of August 21, 1946 to the effect that congressional action was really necessary [Page 319] only in the event special laws should be needed to carry out the program envisaged in the resolutions. He said, inter alia:
“In the case of the Final Act of Chapultepec, the adherence of Argentina has been legislatively approved by the Senate. No treaty was concluded in Mexico. The Conference passed nothing but resolutions, recommendations or declarations, but none of these required or requires the approval of Congress, unless the case should arise that the Executive Power need the legislative sanction of special laws for the defence of the American States and of the Hemisphere, if some of the recommendations or declarations rendered this necessary in the event of anti-American acts.
“This situation has not arisen, but all the same the voice of the people must be heard through the words of their representatives.”
This, of course, is a matter which would have had real importance only if the Congress had failed to ratify. I have, however, sketched our line of reasoning rather fully in an effort to clear up the confusion to which you have referred.
We are naturally pleased with the ratification because it indicates in a concrete way that the Argentine Government has serious intentions of moving the programs along. I hope, as I know you do, that real progress can be made promptly so that we can put away once and for all the question of compliance with the pertinent wartime agreements.
With best wishes,
Sincerely yours,