711.03/3–1253

Memorandum of Conversation, by the Assistant Legal Adviser for Treaty Affairs in the Department of State (Bevans) and George Gray of the Office of the Assistant Secretary of State for Congressional Relations

confidential
  • Subject:
  • Discussion of the McCarran Resolution, S.J. Res. 2, and Related Problems
  • Participants:
  • Dr. Thorsten V. Kalijarvi, Staff Associate, Senate Foreign Relations Committee
  • Mr. Charles Bevans, L/T
  • Mr. George Gray, H

We met with Dr. Kalijarvi at 4:00 for more than an hour, exchanging frank views on the McCarran Resolution, the Bricker Resolution and related problems.

With respect to S.J. Res. 2, the McCarran Resolution, Dr. Kalijarvi explained that for some time Senator George has felt strongly that some adjustments or arrangements should be made to control the use of executive agreements. He stated that in spite of this Senator George does not like S.J. Res. 2 and considers it unworkable.

Dr. Kalijarvi said that if any hearings are to be held on S.J. Res. 2, he will give the Department of State as much advance notice as possible and would appreciate its views as to which other Departments or agencies would be interested in testifying.

He indicated that the Senate sub-Committee (under Senator Taft’s chairmanship) handling S.J. Res. 2 might conceivably be willing to handle it the same as the proposal was handled last year.

He emphasized that there is a feeling on the Hill that the Department of State has repeatedly shown bad faith, that there is a strong feeling that the Executive agencies determine whether to treat an instrument as an agreement to be approved by Joint Resolution or a treaty to be approved by the Senate according to which procedure will be the easiest to obtain approval. He mentioned in this respect the case of the Charter of the International Trade Organization (ITO). He pointed out that after the Senate Foreign Relations Committee had been given to understand that the ITO would be submitted as a treaty, Representative Fulton1 with the concurrence (and possible encouragement) of the State Department but without further consultation with the Foreign Relations Committee had introduced a bill to approve ITO by Joint resolution. [Page 1793]The St. Lawrence Seaway arrangement was also referred to without any compliments about the way it was handled.

Dr. Kalijarvi, however, referred in an entirely different vein to the handling of the German Contractual,2 expressing deep appreciation for full consultation on the subject and for Mr. Riddleberger’s3 forthright explanation to the Committee of the desirability of handling certain parts of the Contractual as executive agreements.

Dr. Kalijarvi suggested the consideration of an arrangement between the Executive and the Congress indicating the types of agreements that would be submitted to the Senate for approval as treaties and those which would be submitted for approval by Joint Resolution.

We expressed some doubt as to the possibility of drawing a line which would be feasible, pointing out that attempting to establish what might seem like reasonable classifications may simply result in a finding that the classifications would be too rigid and could not be followed or so general that they served little purpose. We indicated that perhaps if some way were found to remove the feeling of bad faith and avoid any further procedures which might give rise to it, the problem would, to a large extent, be solved. We also explained that because of the many problems of negotiation and related matters, the Executive has more information on which to make the decision as to procedure and must avoid losing the flexibility of decision necessary to meet urgent problems.

It was agreed that Mr. Bevans and Mr. Gray would explore in the Department the possibility of having the President or the Secretary of State inform the Senate, or otherwise make a unilateral declaration to the effect that whenever the Executive agencies perceived a question as to which procedure should be followed in a particular case, there should be informal consultation with the Senate Foreign Relations Committee and other Congressional leaders with a view to deciding upon the course of action to be followed.

Following this line of thinking, Dr. Kalijarvi said that he thought that something along the following lines, if announced by someone in the Executive branch, would be especially useful:

“Congress cannot by its own action alter the Constitution insofar as the treaty-making power is concerned. A power given to the President by the Constitution remains in that branch and will continue to remain there so long as the Constitution remains in its present form. I recognize the difficulties in determining the manner in which agreements shall be submitted to the Congress, [Page 1794]both as to those which are submitted as treaties,4 joint resolutions, or those which do not require Congressional approval.

“These differences have given rise to a long-standing dispute between the Executive branch and the Congress concerning the handling of international agreements. It must be recognized that it would be difficult to fit all agreements into set categories. At times there may be disagreement as to the manner in which agreements are handled. The Executive Branch cannot disregard the freedom of action which is necessary for its operations in the foreign affairs field. In the interest of orderly procedure, however, I feel that the Congress is entitled to know the considerations that enter into the determinations as to which procedures will be followed. To that end, when there is any question of this nature, the Executive Branch will consult with appropriate Congressional leaders and Committees in determining the most suitable way of handling international agreements as they arise.”

In referring to S.J. Res. 1, Dr. Kalijarvi indicated that the fact that 60 some Senators were cosponsors on that proposal made it a very serious matter but that there remained several hurdles; that even though the subcommittee should render a report favoring the resolution there are Senators who will vote against it.

Throughout the discussion, it was apparent that Dr. Kalijarvi’s grasp and understanding were not limited to the Senate’s problems alone but extended remarkedly to the Department’s day-by-day and long range work of conducting the foreign affairs of the Government. He was significantly sympathetic to the Department’s problems while presenting clearly the Senate Committee’s views and feeling in the premises.

  1. James G. Fulton (R.–Pa.).
  2. For documentation regarding the negotiations leading up to and the signing of the German Contractual Agreements in May 1952, see volume vii .
  3. James W. Riddleberger, Director of the Bureau of German Affairs.
  4. The handwritten phrase “those which require?“ was inserted at this point in the source text.