principal parties to the conflict, and the Act of Paris of March 2, 1973, through which twelve nations approved the agreement of January 27, and issued a public declaration of their will to support it. These agreements-which are in effect armistice agreements and agreements to make peace without further armed conflict-are fully within the President's sphere of authority as Commander-inChief, and as the sole organ of the nation in the conduct of our foreign relations. Together, the Paris agreements of January 27, and March 2, 1973, constitute a significant confirmation of the legal position the United States has taken throughout the long and tragic history of the Indo-China War-that the war has been an international war, not a civil war; that the people of South Vietnam have the right to determine their own destiny without interference by or from North Vietnam; that North Vietnam must withdraw from Laos and Cambodia, as had been promised in the Geneva agreement of 1962; and that the United States, and other nations, have the right to assist South Vietnam, Cambodia and Laos in defending themselves against North Vietnamese aggression. Our government has now stated publicly what has long been obvious-that North Vietnam is violating the agreement of January 27 in many ways, and particularly by its refusal to withdraw its forces from Cambodia and Laos. In short, despite the armistice agreement, North Vietnam is continuing its armed attack on South Vietnam, Laos, and Cambodia, and continuing to use Laos and Cambodia as bases from which to attack South Vietnam. These provisions requiring North Vietnam to withdraw its forces from Laos and Cambodia are the heart of the January 27 agreement. It is manifest from a glance at the map that South Vietnam cannot be secure while hostile forces operate against it from Cambodia and Laos. While we have not denounced the Paris accords, and are doubtless making strenuous diplomatic and military efforts to insist on their fulfillment, we have a perfect right under international law to act against their breach when that breach involves the threat or the actuality of armed attack. Under our Constitution, it is for the President in the first instance to interpret and apply the international agreements of the United States. Congress has the last word, of course, as the recent case of Diggs v. Schultz, decided by the Supreme Court on April 17, 1973, demonstrates. To sum up, then, the President is acting in Cambodia in the exercise of his Presidential power to carry out the international law privileges of the United States under Article 51 of the United Nations Charter, affirmed in this instance by the SEATO Treaty, and by many subsequent acts of Congress. His constitutional position is therefore more complete, in combining the authority of the Presidency and that of Congress, than President Truman's posture in Korea. Sincerely yours, EUGENE V. ROSTOW. LETTERS FROM ALFRED P. RUBIN ROBERT N. C. Nix, UNIVERSITY OF OREGON SCHOOL OF LAW, Chairman, Asian and Pacific Affairs Subcommittee, Committee on Foreign Affairs, U.S. House of Representatives, Washington, D.C. DEAR CONGRESSMAN NIX: My views have been requested for the use of your Subcommittee concerning the South East Asia Collective Defense Treaty of September 8, 1954 (the SEATO Treaty). I gather that the question has arisen whether the SEATO Treaty, law of the land under Article VI of the Constitution, authorizes the President to send bombing missions into Cambodia. As you know, I have spelled out my opinion of the nature of the SEATO commitment in some detail in an article in The International and Comparative Law Quarterly for July 1971. Nonetheless, a summary review might be useful to the Subcommittee and I am very happy to be able to help. The International Law Issues.-Cambodia is not a party to the SEATO Treaty. Moreover, Cambodia has repeatedly announced its refusal to accept the SEATO arrangement. To the best of my knowledge, the present Government of Cambodia has not been given the opportunity to join in the SEATO arrangement by the existing parties to it and the denunciations pronounced by the prior Government of Cambodia have not been contradicted. Therefore, the United States is not bound to Cambodia by any expectations embodied in the SEATO Treaty. In International Law, as in Anglo-American contract law, there is no legal obligation in the absence of an obligee: One to whom the obligation is owed. If the United States is bound to act in Cambodia by virtue of the commitments contained in the SEATO Treaty, it is bound only vis-a-vis its fellow parties. I have seen no evidence that any of those parties regards the SEATO Treaty as obliging anybody to aid Cambodia at present; indeed, a careful reading in context of the few statements by which SEATO parties other than the United States construe SEATO to apply even to Vietnam (such as the Philippine statement reproduced in Hearings Before the Subcomm. on United States Security Agreements and Commitments Abroad of the Senate Comm. on Foreign Relations, 91st Cong., Vol I at p. 31) reveals more than a little reluctance to construe the SEATO Treaty as requiring military action in Indochina. In these circumstances it is difficult to perceive just whose justifiable expectations would be disappointed by the United States construing its obligations under the SEATO Treaty in such a way as to not require action in Cambodia. Indeed, any other interpretation would seem to raise problems with regard to our SEATO partners. If the SEATO Treaty obliges the United States to act in Cambodia it would seem equally to oblige our SEATO partners to act there, and there has been a notable reluctance of those partners to become involved. To the best of my knowledge, the United States has not claimed its SEATO partners are obliged to act in Cambodia. Even if the SEATO Treaty as a whole were construed to apply to Cambodia despite the Cambodian expressions to the contrary and the disinterest of our SEATO partners, it is not clear that the Treaty would oblige the United States to use military force there. In the case of internal difficulties, even if Communistinspired and supported, the obligation of SEATO partners is merely to "consult". Various other possible interpretations of the key language of Article IV (2) of the Treaty were negatived by Secretary of State Dulles under close questioning at the Senate Foreign Relations Committee Hearings incident to Senatorial advice and consent to United States ratification. Indeed, Senator Homer Ferguson specifically asked Secretary Dulles if the external armed attack that would trigger an obligation to do more than consult would exclude “a subterfuge of penetration or subversion". In reply, Secretary Dulles said, "Yes, sir." Thus, the publicly announced interpretation of the treaty commitment excluded "penetration or subversion" even when only a "subterfuge", from the commitment of parties to act. The only commitment in such a case is to consult. It is my under(128) standing that the major burden of fighting in Cambodia now is being borne by Cambodians loyal to Prince Sihanouk; not by attackers from without pressing an "armed attack" of the ordinary sort. Even if there were an "armed attack" of the ordinary sort in Cambodia now, and the SEATO Treaty were interpreted to commit the United States to respond, the required response itself is merely to “act to meet the common danger in accordance with its constitutional processes". This reference to constitutional process was clearly intended not to expand the authority of the President to order action without regard to the pre-existing legal relations between the Executive and the Legislature under our Constitution, but to assure that the United States commitment could not be construed to require the President to go to war without regard to the unchanged Constitutional requirements, if any, for coordination with the Congress (see below). Thus, it cannot be argued convincingly that any justifiable expectations arising from the text of the SEATO Treaty would be disappointed by the refusal of the Congress to permit the President to act in Cambodia. Even if it were felt that under the SEATO Treaty some action beyond a good faith decision not to send military help may be required, presumably that obligation would be met by the President or Congress affirmatively acting to decide that no military or other help would be given because inappropriate to meet a "common danger". The question of whether there is a "common danger" caused by external armed attack in Cambodia seems to me to involve questions of fact which can be resolved only by the SEATO parties. None of those parties has publicly determined that what is happening in Cambodia involves either an external armed attack or a "common danger". Since the danger must be "common", it seems doubtful that a unilateral United States determination would be determinative, even for the United States, of the question of the extent of the SEATO commitment. I confess to some hesitation on these latter points, since the true ramifications of the SEATO commitment cannot be definitively analyzed until the pertinent interpretations have been published. The minutes of the SEATO Council and Foreign Ministers meetings and the SEATO contingency plans that might shed light on the definition of "common danger" at least, have not been made available to the public. With that caution, it may be tentatively concluded that under normal rules of treaty interpretation, the United States is not bound by the SEATO Treaty to act in Cambodia. The Constitutional Law Issues.-Even if the United States were bound to act in Cambodia in present circumstances, as noted above the SEATO Treaty limits that commitment to either mere consultation or (in the case of overt "armed attack") action to meet the common danger "in accordance with its Constitutional process". While I would not presume to offer an opinion at this time on the power of the President as Commander-in-Chief to order bombing in Cambodia, it seems clear to me that the SEATO Treaty does not compel him to that particular action. Nor, indeed, can it authorize such action. The SEATO Treaty is not part of the Constitution of the United States, it is merely a law on the same level as other laws. Cf. Corwin, The Constitution of the United States of America, Senate Doc. No. 89, 88th Cong, 1st Sess. (1964) at p. 470. I know of no Supreme Court decision or convincing argument ever made that a Treaty can change the constitutional relationship between Branches of the Federal Government. In the famous case of Missouri v. Holland, 252 U.S. 416 (1920) Justice Holmes speaking for the Supreme Court ruled that the Tenth Amendment did not diminish the power of the Federal Government to make Treaties that would diminish the police powers of some states, but in that case the Executive and Legislative Branches of the Federal Government acted together and no question of the balance of powers within the Federal Government was raised. I conclude that the SEATO Treaty cannot authorize the President to do anything under our Constitution affecting the powers of the Congress as set out in the Constitution. To the extent the Treaty might be interpreted otherwise there is no evidence that the Senate or the other parties to the Treaty were in any way advised that one effect of the Treaty was to authorize the President to act without whatever coordination with the Congress our unaltered Constitution required. On the contrary, all the available evidence indicates that the intention of the framers of the "constitutional processes" provision was to preserve the powers of the Congress, not to expand any powers of the President. Cf. Hearings cited above, p. 744. None of the foregoing addresses the question of whether the President might have other authority for dispatching bombers to Cambodia. Article 51 of the U.N. Charter and a request by the recognized Government of Cambodia may be interpreted to support the legality of the President's actions on behalf of the United States at international law; the Commander-in-Chief and foreign relations power may authorize the President to direct a bombing of Cambodian territory as a matter of Constitutional law. But it is very difficult to perceive how Article VI of the Constitution, making Treaties the supreme law of the land, given its broadest conceivable interpretation consistent with precedent, can be used to authorize the bombings. The only pertinent treaty, the SEATO Treaty, cannot be interpreted to have that effect if words retain their normal meanings, Executive submissions to the Congress in 1954 and later have been made in good faith, and no unpublished interpretations exist that change the apparent meaning of the SEATO Treaty. Yours truly, ALFRED P. RUBIN, Professor of Law. UNIVERSITY OF OREGON SCHOOL OF LAW, Eugene, Oreg., May 10, 1973. Mr. THOMAS R. KENNEDY, Asian and Pacific Affairs Subcommittee, Committee on Foreign Affairs, U.S. House of Representatives, Washington, D.C. DEAR MR. KENNEDY: You have indicated that my views on the Department of State memorandum, Presidential Authority to Continue United States Air Combat Operations in Cambodia, might be useful to the Asian and Pacific Affairs Subcommittee of the House Committee on Foreign Affairs. I am happy to be able to submit those views. About half of the State Department memorandum is devoted to arguing that the policy of conducting combat operations in Cambodia is reasonable in current circumstances. I do not feel competent to judge the reasonableness of the current policy on the basis of the facts alleged. To do so I should have to know a great deal more than I do about the effectiveness of air operations as opposed to ground operations, and the effectiveness of either with regard to the kinds of problems the United States has been trying to resolve in Southeast Asia. But the reasonableness of current operations is essentially irrelevant to the Constitutional issue: The degree to which the President must have the consent of the Congress before committing the United States to military action abroad in the absence of the most compelling exigencies. As to that question, the State Department memorandum finds adequate Presidential authority in the very vague language of Article II of the Constitution. It goes on to point out that the precise definition of the President's authority is unclear and that "Congress should play an important role in decisions involving the use of armed forces abroad" (page 11). The argument seems to be that when Congress cooperates with the President in implementing his policy, as it has been doing, such Constitutional issues as some may perceive are not brought to issue and no clear legal problem exists. I concur. While I suppose some theoretical argument could be raised concerning the power of the Federal Government as a whole under the Tenth Amendment, which reserves to the States or the people the powers not delegated to the United States by the Constitution, I see no clear expansion of Federal authority beyond the limits set by the Constitution and a long history of interpretation. Within the powers of the Federal Government, I see no clear limitation on the powers of the President, either express or implied, that would prevent his ordering American military forces into action abroad in any circumstances so long as he does not invade the powers of the Congress to raise and appropriate funds under Article II, Section 8, clauses 12 and 13 and Amendment XVI, and to make rules under Article II, Section 8, clauses 11 and 14. I know of no convincing argument that can be made today that the President has so invaded the Constitutional powers of the Congress with respect to the Cambodian situation. Nothing in this comment should be taken to pass any judgment as to the Constitutionality of actions of the President not related to the current military action in Cambodia; and nothing in this comment should be taken to indicate that the Congress does not have the power to place conditions on appropriations or take other steps consistent with the Constitution to limit the President's room for discretion. Yours truly, ALFRED P. RUBIN, Professor of Law. UNIVERSITY OF OREGON SCHOOL OF LAW, Mr. THOMAS R. KENNEDY, DEAR MR. KENNEDY: Yesterday I sent you my comments on the Department of State memorandum, Presidential Authority to Continue United States Air Combat Operations in Cambodia, agreeing that no clear Constitutional issues are raised while Congress continues to cooperate with the President in implementing his policies. Today I learned that the House of Representatives had refused to pass appropriations for American military activities, and that the Senate appears likely to take the same position. This raises many issues not discussed in the State Department memorandum but likely to be of interest to the Subcommittee on Asian and Pacific Affairs. It seems to me that the central point relates to whether the President has properly discharged his obligations as holder of "The executive Power" under Article II Section 1 of the Constitution, and the requirement laid on him "to give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient" under Article II Section 3. It seems to me that the responsibilities implicit in the word "executive" in Section 1 and explicit in the mandatory terms of Section 3 are not discharged by his merely laying his conclusions before the Congress without convincing reasoning or, at least, furnishing the Congress with the technical information it may need on all sides of a problem to permit a wideranging discussion by the Congress concerning the policies that lead to the need and expediency for the legislation (including appropriations legislation) he has proposed. Hitherto, the Congress has not objected to the President's rather offhanded way of achieving the minimal cooperation necessary to avoid a constitutional confrontation. Now that the issue is raised, the scope of Article II Sections 1 and 3 must be explored so that the ultimate political issues can be laid before the country. In contrast to views reportedly expressed last night by members of the Executive Branch regarding Congressional responsibility for events in Southeast Asia, it seems to me that the overriding issues involve the responsibility of the President to allow the Congress to play the balancing role envisaged for it in the Constitution. The integrity of the Constitutional system is far more important to the United States than the security of any part of Southeast Asia, and there is no reason that I know of why both interests cannot be served if the President is willing to discharge his responsibilities to "preserve, protect and defend the Constitution", including that part of it that requires him to recommend legislation "to their Consideration" (emphasis added) when seeking funds or other cooperation from the Congress. I do not overlook the duty of the President to "take care that the Laws be faithfully executed" and his failure to deliver to the Congress various reports required by legislation. See Senate Comm. on Foreign Relations, Reporting Requirements in Legislation on Foreign Relations, 91st Cong., 2d Sess. (1970). But I distinguish reporting requirements under existing legislation from the need to furnish information with regard to proposed legislation. It is in the latter area that the most interesting Constitutional questions seem to arise now. Yours truly, ALFRED P. RUBIN, Professor of Law. |