501.AC/5–747
Paper Prepared in the Office of Special Political Affairs 1
Justification for Submitting General Convention in Form of Joint Resoluton
The document under consideration is supplementary to a previously existing treaty obligation, that is, the obligation which this Government undertook in Article 105 of the Charter. The General Convention is necessary to spell out the details of this undertaking. It is more appropriate to carry out the provisions of a treaty by a procedure in the nature of an agreement, rather than by another treaty. The situation is similar to that of the military agreements to be concluded under Article 43 of the Charter. The Report of the Senate Foreign Relations Committee on this matter in connection with the United Nations Participation Act (P.L. 565, 79th Cong.) states:
“During the debate in the Senate on the Charter last July, there was considerable discussion as to whether the military agreements should be considered as treaties or whether they might be approved by the Congress through the joint resolution procedure. The preponderant view was that the latter procedure was preferable since the agreements would be entered into for the purpose of giving effect to the obligation assumed by this country under article 43 of the Charter to make available to the Security Council the armed force necessary for the purpose of maintaining international peace and security. Under this view, the precise details of the obligation—such as the exact amount of the forces to be contributed and the places where they are to be stationed—is not a matter for treaty consideration but for legislative sanction by the Congress under its constitutional powers to raise and support armies, to provide and maintain a navy and to make rules for the government and regulation of the land and naval forces.” (Sen. Rept. No. 717, 79th Cong. 1st Sess.)
As you know, the law was enacted authorizing the President to negotiate these agreements subject to the approval of Congress by appropriate act or Joint Resolution.
The present situation is similar in that the basic policy decision has already been made pursuant to the treaty process, and now that we come to the detailed provisions, they are, by their subject matter, appropriate for legislative action.
[Page 39]It is true that it has been the practice of this Government to regard conventions as synonymous with treaties, so far as procedural requirements are concerned. However we feel that this is not a legal requirement, and that the circumstances of the present instrument warrant a departure from this practice.
The arrangement here under discussion was negotiated in London under the name of a “Convention”, which is the term used in Article 105, paragraph 3 of the Charter. The United States participated in the negotiations as one among fifty other States. Later on the Headquarters Agreement was negotiated between the United States and the United Nations, and this instrument was designated an “agreement” on the suggestion of the United States. This was because the contents of the agreement deal in general with matters which fall more particularly within the province of the Congress, under our Constitution, as distinguished from those which pertain to the President in the conduct of foreign relations. Upon consideration it appeared very clear that the same considerations apply to the General Convention. In general character the two documents are similar and treat of the same subject matter in some cases. If we had negotiated the instrument on a bilateral basis we would doubtless have tried to have it designated as an “agreement” for the purposes of our own constitutional practice. However it is difficult to press such a point in a large international gathering where the States all have their own constitutional problems, all of them different.
We do not think that the name which a document is given should govern its legal effect. It is the substance that counts. The substance of both these instruments concerns matters essentially within the competence of Congress, and we feel they should be treated alike, through joint action of both Houses.
So far as precedents are concerned, we find that the names by which documents are called are not necessarily controlling, even in our own domestic practice. For example, by Act of 1872 and again in 1934 the Congress authorized the Postmaster General, with the approval of the President, to conclude postal treaties or conventions. (17 Stat. 304 and 48 Stat. 943). Pursuant to this authorization the Postmaster General concluded in 1874 the Treaty concerning the formation of a General Postal Union, which is officially designated as a treaty in the Statutes at Large, volume 19, page 577. Similarly, in 1934 the Postmaster General concluded the Universal Postal Convention, pursuant to the legislation of the same year. (49 Stat. 2741). A number of other postal conventions have been concluded pursuant to the same legislation. (Cf. Postal Union of the Americas and Spain, 50 Stat. 1657; Parcel Post Conventions between the United States and France, 49 Stat. 3322; between the United States and Norway, 49 Stat, 3042.)
[Page 40]Another precedent having a very close similarity to the present case is that of the acceptance by this Government of membership in the International Labor Organization. This was done by the President on August 20, 1934 and proclaimed on September 10, 1934 pursuant to a Joint Resolution of Congress of June 19, 1934 (48 Stat. 1182, 2712). The Constitution of the International Labor Organization is, of course, a part of a treaty, or a series of treaties, namely the Treaty of Versailles and the other peace treaties which followed World War I.
In all the above cases the instruments were designated as “treaties”. The fact that the treaty procedure was not followed in our own domestic ratification process does not derogate from their status as fully binding international agreements, nor from the fact that the other parties probably regard them as treaties.
It should be noted that this is not the ratification process in the usual sense of the word. It is rather a simple act of acceptance of an instrument already approved by the General Assembly and opened for accession by the Member states. In this the situation resembles that of the International Labor Organization, which was also a simple acceptance, by authority of a joint resolution of a multilateral instrument designated as a treaty.
- Although this document was drafted by the Assistant Chief of the Division of International Organization Affairs on March 5, it is included at this point because it describes the Department’s reasoning in deciding to submit the General Convention in the form of a joint resolution. Presumably submitted for the information of Dean Rusk, who had just assumed direction of the Office of Special Political Affairs.↩