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746.4 United states as depositary
Inquiries from foreign diplomatic missions at Washington and from American diplomatic missions abroad with respect to the preparation or deposit of instruments relating to any multilateral agreement of which the United States is depositary are referred to the Assistant Legal Adviser for Treaty Affairs. That officer is to be notified immediately of the receipt of any such document anywhere in the Department, inasmuch as a depositary is required to ascertain whether those documents are properly executed before accepting them for deposit, to keep accurate records regarding them, and to inform other governments concerned of the order and date of receipt of such documents,
DEPARTMENT OF STATE, DEPARTMENT CIRCULAR No. 175, DECEMBER 13, 1955 Note: This Circular superseded by 11 Foreign Affairs Manual. Chapter 700 -Treaties and Other International Agreements (circular 175 procedure), June 6, 1969.
Subject: 1. Proper Exercise of: (1) The Treaty-Making Power of the United States; and (2) The Executive Agreement-Making Power of the United States. II. Approval of Texts and the Making of Arrangements for Signature.
1. PURPOSE OF CIRCULAR
1.1 The purpose of this circular is to insure (a) that the function of making treaties and other international agreements is carried out within traditional and constitutional limits; (b) that the objectives to be sought in the negotiation of particular treaties and other international agreements are approved by the Secretary or Under Secretary; (c) that firm positions resulting from negotiations are not undertaken without the approval of the interested Assistant Secretaries or their Deputies; (d) that the final texts developed are approved by the interested Assistant Secretaries or their Deputies and brought to the attention of the Secretary or Under Secretary a reasonable time before signature; and (e) that authorization to sign the final text is secured and appropriate arrangements for signature are made.
1.2 It is a further purpose of this circular to insure that full implementation shall be given to the policy stated in the Secretary's testimony before the Senate Committee on the Judiciary on April 6, 1953, in which he said :
"The Constitution provides that the President shall have power to make treaties by and with the advice and consent of the Senate. This administration recognizes the significance of the word 'advice'. It will be our effort to see that the Senate gets its opportunity to 'advise and consent' in time so that it does not have to choose between adopting treaties it does not like, or embarrassing our international position by rejecting what has already been negotiated out with foreign governments.”
“... I am authorized by the President to advise this Committee, the Senate Foreign Relations Committee, and the House Foreign Affairs Committee as follows:
“It has long been recognized that difficulties exist in the determination as to which international agreements should be submitted to the Senate as treaties, which ones should be submitted to both Houses of the Congress, and which ones do not require any Congressional approval.
"... the Congress is entitled to know the considerations that enter into the determinations as to which procedures are sought to be followed. To that end, when there is any serious question of this nature and the circumstances permit, the Executive Branch will consult with appropriate Congressional leaders and Committees in determining the most suitable way of handling international agreements as they arise.
2. SCOPE OF THE TREATY-MAKING POWER
Treaties should be designed to promote United Sates interests by securing action by foreign governments in a way deemed advantageous to the United States. Treaties are not to be used as a device for the purpose of effecting internal social changes or to try to circumvent the constitutional procedures established in relation to what are essentially matters of domestic concern.
3. SCOPE OF THE EXECUTIVE AGREEMENT-MAKING POWER
Executive agreements shall not be used when the subject matter should be covered by a treaty. The executive agreement form shall be used only for agreements which fall into one or more of the following categories :
a. Agreements which are made pursuant to or in accordance with existing legislation or a treaty ;
b. Agreements which are made subject to Congressional approval or implementation; or
C. Agreements which are made under and in accordance with the President's Constitutional power.
4. SCOPE OF AUTHORIZATION TO NEGOTIATE
Approval of a request for authorization to negotiate a treaty or other international agreement does not constitute advance approval of the text nor authorization to agree upon a date for signature or to sign the treaty or agreement. Authorization to agree upon a given date for, and to proceed with, signature must be specifically requested in writing, as provided in Section 5.5. This applies to treaties and other agreements to be signed abroad as well as those to be signed in Washington. Special instructions may be required, because of the special circumstances involved, with respect to multilateral conventions or agreements to be signed at international conferences.
5.1 Commencement of negotiations for new treaties and executive agreements
Negotiations of new treaties, or new executive agreements on matters of substance, are not to be entered into until authorized in writing by the Secretary or the Under Secretary. (This situation is to be distinguished from the case where a draft of an international convention may be formulated or considered in meetings of an international organization of which the United States is a member. In that event, the appropriate procedure is a position paper for the U.S. Delegation which should be cleared with the Secretary or Under Secretary. Any such conventions formulated are subject to the provisions of Section 5.5 before they are signed for the United States and to Section 5.9.) 5.2 Questions as to treaty or executive agreement form
Where there is any serious question as to whether an international agreement should be made in the form of a treaty or in the form of an executive agreement made by the President alone or with the consent of both Houses of Congress, the matter shall be brought to the attention of the Secretary by a memorandum prepared by the officer responsible from the contemplated negotiations. This memorandum shall first be routed to the Legal Adviser and the Assistant Secretary for Congressional Relations for their clearance and comment. Thereafter, whenever circumstances permit, consultation shall be had with appropriate Congressional leaders and committees in determining the most suitable way of handling such international agreements, such consultation to be had by the office responsible for the negotiations with the assistance of the Assistant Secretary for Congressional Relations. 5.3 Exercise of authority to negotiate
a. Where authorization is given for the negotiation of a treaty or other agreement, or a series of treaties or agreements by blanket authorization, the office responsible for the negotiations shall inform L/T in each instance as soon as negotiations are undertaken with a particular country.
b. Purely operational arrangements, such as Form 10-5 ICA project agreements, procurement authorizations and cash contribution agreements, need not be reported where they are in implementation of an existing international agreement. 5.4 Conduct of negotiations
The office responsible for any negotiations shall assure:
a. that during the negotiations no position is communicated to a foreign government as a United States position that goes beyond any existing authorization or instructions ;
b. that no proposal be made or position be agreed to beyond the original authorization without approval by the appropriate Assistant Secretaries or their Deputies, and also, in the case of treaties or other international agreements which concern responsibilities of ICA, the Director of ICA or his Deputy ;
c. that all significant policy-determining memorandums and instructions to the field on the subject of the negotiations are submitted to and cleared by all Assistant Secretaries concerned or their Deputies, and also, in the case of treaties or other international agreements which concern responsibilities of ICA, the Director of ICA or his Deputy;
d. that the Secretary or Under Secretary is kept informed in writing of important policy decisions and developments, including any particularly significant departures from substantially standard drafts that have been evolved;
e. that, with the advice and assistance of the Assistant Secretary for Congressional Relations, the appropriate Congressional bodies are kept advised of the intention to negotiate any especially significant treaties or executive agreements and of any important developments thereon; and
f. that, in any case where any other agency participates in negotiations, the official or officials representing such agency in the negotiations shall be informed appropriately of the requirements herein as they apply to such negotiations. 5.5 Transmission of texts to Secretary; approval and authorization to sign
The texts of treaties and other international agreements should be completed and approved in writing by all responsible officers concerned sufficiently in advance to give the Secretary or Acting Secretary, or the person to whom authority to approve the text has been delegated, adequate time before the date of signing to examine the text and dispose of any questions that arise. Except as otherwise specifically authorized by the Secretary or the Acting Secretary, a complete text of a treaty or other international agreement shall be delivered to the Secretary or the Acting Secretary, or other person authorized to approve the text, before any such text is agreed upon as final or any date is agreed upon for its signature. The text (including the complete text of any annex, schedule, exchange of notes, or other related document) shall be accompanied by a memorandum requesting authorization to make arrangements for signature of that text. The memorandum shall indicate the approval in writing of (a) the Assistant Secretary primarily responsible for the subject involved, and also, in the case of treaties of other international agreements which concern responsibilities of ICA, the Director of ICA or his Deputy; (b) the Legal Adviser, as to legality and form; (c) other Departmental clearances as required; and (d) if any other agency has primary responsibility for or substantial interest in the subject (for example, aviation, copyrights, patents, taxation, military base rights), a high ranking officer of that agency. 5.6 Exercise of delegated authority to sign
Where the Secretary or the Acting Secretary has delegated authority to sign, or to approve the signature of, an agreement or series of agreements, including significant exchanges of notes, any officer, other than the Under Secretary, exercising such authority shall immediately report in writing to the Secretary the fact that such agreement was signed and the name and position of the representative or representatives who signed on behalf of the other government or governments with which the agreement was concluded. 5.7 Engrossing of documents for signature
Before the text of a treaty or other formal agreement, including any related documents to be annexed or signed, is engrossed for signature in the Department, written approval of that text by the Assistant Secretary responsible for the subject involved shall be obtained. In the case of treaties or other international agreements which concern responsibilities of ICA, the approval of the Director of ICA or his Deputy shall also be required. Adequate time (normally 7 business days) shall be allowed for the engrossing (typing on treaty paper), comparing, etc., of the treaty or other single document agreement to be signed, in order to assure sufficient time for the preparation of accurate texts in duplicate for signature, including, in the case of documents to be signed in a foreign language, sufficient time for the Division of Language Services to prepare any translations required, check any existing foreign-language draft, and check the engrossed foreign-language text. The determination of the amount of time required in each instance to complete the engrossing is the responsibility of the Assistant Legal Adviser for Treaty Affairs. 5.8 Certificate on foreign-language text
Before any treaty or other agreement containing a foreign-language text is laid before the Secretary or the Acting Secretary (or any person authorized by either of them) for signature, a signed memorandum shall be obtained from a responsible language officer of the Department certifying that the foreign-language text and the English language text are in conformity with each other and that both texts have the same meaning in all substantive respects. 5.9 Transmission of texts for publication
The office responsible for the negotiation of a treaty or other agreement is also responsible for assuring the most expeditions transmission of the signed original text, together with all accompanying papers such as agreed minutes, exchanges of notes, plans, etc., to the Department for the attention of the Assistant Legal Adviser for Treaty Affairs, Office of the Legal Adviser; provided that where originals cannot be sent accurate certified copies should be obtained and transmitted as in the case of the original (see 4 FSM 226.1, 226.2, 226.3 and 227.43). Any officer in the Department having in his possession or receiving from any source a signed original or certified copy of a treaty or agreement or of a note or other document constituting a part of a treaty or agreement shall forward such documents immediately by special messenger to the Assistant Legal Adviser for Treaty Affairs (L/T), in order that processing for publication may take place at once.
This Circular supersedes Department Circular No. 25 of May 15, 1953.
S. 3475—TO HELP PRESERVE THE SEPARATION OF
POWERS AND TO FURTHER THE CONSTITUTIONAL PREROGATIVES OF CONGRESS BY PROVIDING FOR CONGRESSIONAL REVIEW OF EXECUTIVE AGREEMENTS
FRIDAY, MAY 19, 1972
COMMITTEE ON THE JUDICIARY,
Washington, D.C. The subcommittee met, pursuant to recess, at 10:10 a.m., in room 2228, New Senate Office Building, Senator Sam J. Ervin, Jr. (chairman of the subcommittee), presiding.
Present: Senator Ervin (presiding).
Also present: Rufus L. Ēdmisten, chief counsel and staff director; Joel M. Abramson, minority counsel; Walker F. Nolan, Jr., assistant counsel; and Philip B. Kurland, chief consultant.
Senator ERVIN. The subcommittee will come to order. Counsel will call the first witness.
Mr. EDMISTEN. Mr. Chairman, the first witness this morning is the Honorable Ralph E. Erickson, Office of Legal Counsel, Department of Justice, and he is accompanied by a gentleman he will introduce for the record.
Senator Ervin. I want to welcome both of you gentlemen to the committee and express our appreciation for your willingness to come to us and give us the benefit of your views on this important subject. STATEMENT OF HON. RALPH ERICKSON, OFFICE OF LEGAL
COUNSEL, DEPARTMENT OF JUSTICE; ACCOMPANIED BY JACK GOLDKLANG, ATTORNEY, OFFICE OF LEGAL COUNSEL
Mr. ERICKSON. Mr. Chairman, I am pleased to be here this morning. I would like to introduce the gentleman on my right, Jack Goldklang, an associate from the Office of Legal Counsel.
Mr. Chairman, I appreciate this opportunity to appear before you to discuss the legal aspects of "executive-legislative relations in foreign affairs” with particular reference to executive agreements.
When S. 3475, which proposes a new role for Congress in connection with executive agreements, was introduced you expressed the concern that the Founding Fathers' concept of shared powers in the area of international agreements had been substantially eroded by the use of executive agreements. (118 Cong. Rec. S 5787). In light of