The CHAIRMAN. You will have a lot of sword swallowing acts going on here, and two-headed women, three-headed cow acts going on there, independent of the main organization. Pretty soon you will not have the main organization at all. You will have to look in a dozen different places and finally there will be so much overlapping and so much confusion that you will be unable to find the source of power.

Mr. FAHY. One looks to the agreement which is negotiated for the source of the power. One looks to the United Nations Charter for the source of the power of the United Nations.

As much as I am devoted to the United Nations as the keystone of our foreign policy, I cannot say, as a lawyer, that the United Nations can do the detailed things which are contemplated that such a trade agreement organization can do.

I might add that a purpose of the agreements between the United Nations and specialized agencies is to prevent the confusion and overlapping to which you refer.

The CHAIRMAN. Mr. Fahy, let me suggest to you that I have been trying to voice my own opinion-strictly my own opinion-that the Senate of the United States will not authorize the set-up of a lot of autonomous agencies running around loose with a greater power than the United Nations, and I have been trying unsuccessfully to lead you into a recognition of that, hoping that your path would be smoothed in the Senate.

Mr. FAHY. I understand.

The CHAIRMAN. But I do not want to lead you away from your honest, intellectual opinion as a lawyer.

Mr. FAHY. Yes. It turns upon what each of us means by "power." If we construe power to mean that it is within the power of the United Nations to promote, encourage, and enter into relationships with an organization that has the purposes of the ITO, I entirely agree.

The CHAIRMAN. Will you permit me to clarify that under my mental operation?

I am reading from the report of the Secretary of State to the President, on the Charter of the United Nations, dated June 26, 1945. I shall read from page 115 of this particular print, as follows:

On the other hand, the view was advanced that the further element in the Australian proposal calling for national action separate from the international organization went beyond the proper scope of the charter of an international organization and possibly even infringed on the domestic jurisdiction of member states in committing them to a particular philosophy of the relationship between the government and the individual.

The pledge as finally adopted was worded to eliminate such possible interpretation. It pledges the various countries to cooperate with the Organization by joint and separate action in the achievement of the economic and social objectives of the Organization without infringing upon their right to order their national affairs according to their own best ability, in their own way, and in accordance with their own political and economic institutions and processes.

To remove all possible doubt on this score, the following statement was unanimously approved and included in the record of the Conference (Report of the Rapporteur of Committee 3 of Commission II):

"The members of Committee 3 of Commission II are in full agreement that nothing.contained in chapter IX can be construed as giving authority to the Organization to intervene in the domestic affairs of member states."

It was no simple matter to hammer out these issues and to reach complete agreement among the 50 participating nations. The final results, however, justify the effort. The Charter opens the way for international cooperation in the economic, social, and related fields on a scale unknown in the past. And it safeguards at the same time the right of nations to live their own lives free from unwarranted interference.

Now, let me read you the practical interpretations given the Charter at the time the Charter was under hearing before the Senate Foreign Relations Committee, before the Senate ratified the treaty.

I am reading from page 309 of those hearings:

Mr. PASVOLSKY. We come next to another set of related chapters, the three chapters beginning with XI and going through XII and XIII. These chapters deal with the problems of non-self-governing territories.

Senator MILLIKIN. Before we get to those chapters, may I ask a question? The CHAIRMAN. Senator Millikin?

Senator MILLIKIN. I notice several reiterations of the thought of the Charter that the Organization shall not interfere with domestic affairs of any country. How can you get into these social questions and economic questions without conducting investigations and making inquiries in the various countries?

It

Mr. PASVOLSKY. Senator, the Charter provides that the Assembly shall have the right to initiate or make studies in all of these economic or social fields. is provided that the Economic and Social Council, through its commissions and its staff, would be assembling information in the fields that would be necessary for the performance of its duties. It is provided that the Economic and Social Council would arrange for reports from the specialized agencies, and presumably would arrange for receiving any kind of information that it might need. The Economic and Social Council is also given the power to make arrangements with the member states for reports as to steps taken to give effect to recommendations. Senator MILLIKIN. Might the activities of the Organization concern themselves with, for example, wage rates and working conditions in different countries?

Mr. PASVOLSKY. The question of what matters the Organization would be concerned with would depend upon whether or not they had international repercussions. This Organization is concerned with international problems. International problems may arise out of all sorts of circumstances.

Senator MILLIKIN. Could the Organization concern itself with tariff policies of the various countries?

Mr. PASVOLSKY. The Organization would, of course, consider questions that arose out of tariff or commercial policies. But it is very important to note here that the Economic and Social Council can make recommendations to government generally, rather than to specific governments.

Senator MILLIKIN. Only to governments generally?

Mr. PASVOLSKY. Yes.

Senator MILLIKIN. The reports and recommendations naturally might refer to specific governments?

Mr. PASVOLSKY. Oh, they might refer to specific conditions; naturally.

Senator MILLIKIN. They would have to be built up out of investigations made of or in specific countries?

Mr. PASVOLSKY. Yes.

Senator MILLIKIN. Would such an organization concern itself with the various forms of discrimination which countries maintain for themselves: bloc currency, subsidies to merchant marine, and things of that kind?

Mr. PASVOLSKY. I should think that the Organization would wish to discuss and consider that. It might even make recommendations on any matters which affect international economic or social relations. The League of Nations did. The International Labor Office has done that. This new Organization being created will be doing a great deal of that. any of those lines, under the basic theory of the whole Organization, would have a powerful effect against an offending nation, would it not?

Mr. PASVOLSKY. The whole document is based on the assumption that recommendations by an agency of this sort would have considerable effect.

MILLIKIN. Let me invite your attention, Doctor, to the fact that we a "have" nation, in a world of "have not" nations. Might we not

Senator are relatively

and a great number of recommendations focused against us that could finally engender a lot of ill will and might lead to serious difficulties, assuming we did not care to correct them under the recommendations? be any more ill will engendered by the fact that a discussion of that sort takes places. Recommendations would be made to nations in general that certain practices would not

be tolerated.

Senator MILLIKIN. Are you not providing means whereby complaints may be focused against ourselves in an official way?

Mr. PASVOLSKY. Complaints can be made at any time and in any way. What is important is that we are providing here a mechanism by means of which maladjustments can be corrected and, therefore, fewer complaints made. Senator MILLIKIN. Would the investigation of racial discriminations be within the jurisdiction of this body?

Mr. PASVOLSKY. Insofar, I imagine, as the Organization takes over the function of making studies and recommendations on human rights, it may wish to make studies in those fields and make pronouncements.

Senator VANDENBERG. At that point I wish you would reemphasize what you read from the Commission report specifically applying the exemption of domestic matters to the Social and Economic Council.

Mr. PASVOLSKY. I will read that paragraph again.

Senator VANDENBERG. Yes, please.

Mr. PASVOLSKY (reading): "The members of Committee 3 of Commission II are in full agreement that nothing contained in Chapter IX can be construed as giving authority to the Organization to intervene in the domestic affairs of Member States."

The CHAIRMAN. And, furthermore, whether they do involves no compulsion whatvere, but is in the nature of recommendations to the States, and the States are perfectly free to take such recommendations or reject them.

Mr. PASVOLSKY. Quite right.

The CHAIRMAN. There is the limit of the power in the Charter of the United Nations over the field touched upon by the Organization that we are discussing.

Now, it is your contention that this Organization, being a related organization and the kind of organization contemplated in the charter, can have greater powers than the United Nations itself?

Mr. FAHY. If you let me define my use of the word "power."

The CHAIRMAN. Let us limit it to recommendations as opposed to sanctions.

Mr. FAHY. Yes, sir.

The CHAIRMAN. Let us take it from this standpoint, because I do not think it will be denied that the proposed organization has sanctions in it.

Mr. FAHY. The proposed Trade Organization.

The CHAIRMAN. That is what I am talking about.

Mr. FAHY. The proposed Trade Organization will have provisions under which separate nations, members of it, might agree under their own independent responsibility to take action which is binding upon them, which is not limited to recommendation; that is the way I will put it. But, that can only be done, Senator, if the United States, through its own constitutional processes, binds itself; that is what I mean by more than the power of the United Nations.

As is exposed in the parts that you read, the Economic and Social Council of the United Nations is limited to recommendation. I would add to recommendation, coordination and promotion-the other words of the charter. I think in the tesimony the word "recommendation' was used as a short cut for that and kindred kinds of responsibility, but a treaty between the United States and England and France and any other number of nations, might bind the United States to do more than a recommendatory action, and an organization set up under compact may have relations with the United Nations.

The CHAIRMAN. Do those article contemplate the type of organization which we have here?

Mr. FAHY. Yes.

The CHAIRMAN. And, as you said a while ago, it is contemplated that this Organization shall be brought into the relationship contemplated by those two chapters of the United Nations Charter?

Mr. FAHY. Yes, sir.

The CHAIRMAN. Now, let us get to the crux of the matter.

Let us assume your theory. Let us assume, to my mind, a subordinate organization, and to your mind a somewhat independent related autonomous organization, let us assume that your theory is correct without any admission on my part that it is. Let us assume that in this Organization, related as it is to the United Nations, that you can put in provisions that go beyond the powers of the United Nations

itself.

Now, I will ask you, How was the United Nations Charter brought back to Congress; was it brought back as a treaty or was it brought back as an agreement which might be voted upon by both Houses? Mr. FAHY. As a treaty.

The CHAIRMAN. And was so approved?

Mr. FAHY. Yes, sir.

The CHAIRMAN. Does it not follow that if you set up an agency with greater powers than those set up in the treaty, that you will have to bring it back?

Mr. FAHY. No, sir.

The CHAIRMAN. Will you explain that?

Mr. FALY. The fact that the Charter was subjected to two-thirds vote and the advice and consent rule under the Constitution does not mean that this Organization necessarily must be approved in the same manner. I will explain why I think that is true, but before 1 do so, I want to state very clearly, Senator, that I am not suggesting that it not be brought back to the Senate for two-thirds advice and

consent.

The CHAIRMAN. May I interrupt without disrupting your continuity?

Whether or not it comes back that way or whether it comes back for action by both Houses, is something that both Houses will want to know about before it comes back, so let us reach an agreement as to how it is coming back.

Mr. FAHY. I was going to say something along that line.

That is an open question, as far as I am concerned. That decision, will be, as the Senator suggests, made in consultation with the leaders I do not think, need depend on a legal determination and I suppose the legal point, I said "No," for this reason: the provisions with respect of the respective Houses before the final method is adopted. On other nations, historically from the very beginning, have been in

cluded

among

the

thorized by the concurrent vote of the two Houses (exhibit XVIII-C). The CHAIRMAN. I would like to challenge that head-on. I would like to suggest to you that prior to the time of the Reciprocal Trade Jess uniform course of this Government was to bind its trade agree

agreements which have been considered valid if au

ments in treaties.

Mr. FAHY. Mr. Chairman, I would like to submit some data to you on that, but I think that is not correct. I may be mistaken.

(Mr. Fahy subsequently submitted the material which appears as exhibit XI.)

The CHAIRMAN. I may be mistaken also, but I have given some study to it.

Mr. FAHY. I know you have.

The CHAIRMAN. Let me put it this way: If not invariably, very often our trade agreements, consisting of more or less routine matters, were incorporated in conventions or treaties; is that correct? Mr. FAHY. I thought not, Senator.

The CHAIRMAN. By "trade agreements," I mean things having to do with customs practices, and consular proceedings.

If there is any question about that, all I have to do is to send over office for some six volumes on treaties.

to my
Mr. FAHY. That is true.

The CHAIRMAN. Customs, duties, and consular matters.
Mr. FAHY. That is true.

The CHAIRMAN. The whole subject of trade.

Mr. FAHY. But paralleling that, there has been, from the very beginning, a series of acts of Congress authorizing the President to take action in this general field.

The CHAIRMAN. Of course, because the Constitution gives the Congress, which means both Houses of Congress, specific jurisdiction over duties, customs matters, and foreign trade.

Mr. FAHY. And foreign trade.

The CHAIRMAN. Therefore, it is within the general jurisdiction of Congress to delegate the administration of its power to the President. The proper distinction, I suggest, is that when we go beyond these conventional matters and commence to surrender sovereignty, that is the point where the proper field of treaty comes in.

Mr. FAHY. Due to the fact, as the Senator points out, that the Congress, under the Constitution-not the Senate alone has broad powers in this area, and due to the fact that the President, under the Constitution, has broad powers in the conduct of foreign affairs, the combination of those two powers, as I understand, by which the Government as a whole conducts its business, leads to the conclusion that if the Congress as a whole, having those broad powers in this field, approves or acts in combination with the President's exercise of his powers in the field of foreign affairs it would be valid under the Constitution.

The CHAIRMAN. Of course, you will agree with me that the President's powers as such are independent of the powers delegated to him by the Congress in administrative matters. Also, I believe you will agree that there is no more fruitful subject of difference of opinion than the scope of Presidential power. For present purposes, we need not consider that, because the President, as you have stated, is not going to act under any real or assumed power to complete a purely Executive agreement on this subject.

Mr. FAHY. No, sir. The charter will be submitted.

The CHAIRMAN. So we can pass that and limit ourselves to the powers of Congress.

I am simply suggesting to you that despite the fact that the Congress has jurisdiction over these matters, that whenever you come to a matter where there is a substantial disparagement of our sovereignty, wherever you come to a matter where sanctions may be in