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Treaties
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Philip W. Buchen Files
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The original documents are located in Box 63, folder "Treaties" of the Philip Buchen Files
at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 63 of the Philip Buchen Files at the Gerald R. Ford Presidential Library
THE WHITE HOUSE
WASHINGTON
August 13, 1976
Dear Mr. Secretary:
The Counsel's Office has reviewed the material
you sent to me on Puerto Rico's requests in
regard to the Law of the Sea Conference and
treaty.
After consultation with the Domestic Council,
it is the Counsel's Office view that the issues
raised by Puerto Rico should be responded to
by the State Department. Thus, I am returning
to you Governor Hernandez-Colon's letter and
your draft response to him. The draft response
appears appropriate.
Sincerely,
They W.Burher
Philip W. Buchen
Counsel to the President
The Honorable Henry A. Kissinger
Secretary of State
Washington, D. C. 20520
Enclosures
Treaties
THE WHITE HOUSE
also
WASHINGTON
STATE
August 17, 1976
(HOLD
MEMORANDUM FOR:
KEN LAZARUS
FROM:
PHILIP BUCHEN
T.
Attached is a communication from Monroe Leigh
concerning a draft Executive Order which includes
a copy of Bob McCloskey's letter to Jim Lynn and
a copy of the draft that has been cleared by
Secretary Kissinger and Attorney General Levi.
Please prepare the comments of this office.
August 5, 1976
Honorable Philip W. Buchen
Counsel to the President
The White House
Washington, D. C. 20500
Dear Phil:
Pursuant to our recent telephone
conversation, I have enclosed a copy of
the draft executive order on treaties and
other international agreements, along with
the accompanying letter from Bob McCloskey
to OMB.
The draft order was transmitted to
OMB earlier today.
Sincerely,
Monroe Leigh
Enclosures:
1. Draft executive order
2. Letter to OMB
August 5, 1976
Dear Mr. Lynn:
Transmitted herewith for submission to the
President is a draft executive order on Treaties and
Other International Agreements of the United States
(Tab 1). The primary purpose of the proposed order
is to require that all treaties or executive agreements
concluded by any agency of the U.S. Government receive
the prior approval of the President or of the Secretary
of State. The draft order further requires the texts
of concluded agreements other than treaties to be
transmitted to the Department of State no later than
20 days after their entry into force, thus permitting
the Department to meet its obligation under the Case
Act (P.L. 92-403) to transmit such agreements to the
Congress no later than 60 days after their entry into
force. The draft order also makes clear that the
Department of State is to make the determination
whether any proposed arrangement or document, or series
of arrangements or documents would, if concluded,
constitute one or more intornational agreements within
the meaning of the Case Act.
The need for such an executive order has become
increasingly apparent. Certain agencies and departments
of the Government are not clearing with the President or
the Secretary of State, either before or after negotiation,
agreements they have concluded with foreign governments
or agencies. Certain agencies believe that they - not
the Department of State - have the legal right to determine
whether any particular document or set of documents for
which they have primary responsibility constitutes an
international agreement within the meaning of the Case
Act. Cortain agencies are either not sending their con-
cluded agreements to the Department for transmittal to
The Monorable
James T. Lynn, Director
Office of Management and Budget,
Washington, D.C. 20503.
- 2 -
the Congress pursuant to the Case Act, or are sending
them too late for the Department to meet the Act's
50-day requirement. The draft order is designed to
remedy each of these deficiencies.
The issue has generated adverse congressional
comment, particularly by Chairman Sparkman of the Sonata
Foreign Relations Committee, who complained in a recent
letter (Tab 2) to Secretary of State Kissinger that the
Foreign Relations Committee "has had considerable
difficulty in obtaining executive agreements within the
time limit of 60 days required by the Case Act. He
cited three agreements concluded by an independent
commission, but not transmitted to the Department of
State.
on March 1 Senator Abourezk called for criminal
penalties for Case Act violations (Tab 3). He was react-
ing to a Report (Tab 4) issued on February 20 by the
General Accounting Office which stated that 34 agreement*
with Korea, most of which were concluded by officers in
the field, had never been submitted to the Department of
State or to the Congress.
Many individual examples could be cited of failure
to clear agreements with the President or the Department
of State, and of late transmittals of concluded agreement"
to the Department of State. In a few cases, the legal
authority for agreements not previously cleared in the
Department of State was questionable. In one recent
case the Department of State "reaties Office was not
permitted even to examine an agreement with & foreign
country already concluded by another Department of the
U.S. Government.
It is not possible to conduct the foreign policy of
the United States in a coherent and coordinated mannor
if various Government departments and agencies may
conclude international agreements as they wish and
without State Department or Presidential approval. or
may develop their own criteria for deciding what con-
stitutes an international agreement. Further failure
to send concluded agreements to the Department of State
in timely fashion prevents the fulfillment of the
Department's statutory obligations. I believe that the
issue has probably exacerbated the problem of
- 3 -
congressional attempts to establish a right of legis-
lative veto over executive agreements.
In our judgment, nothing short of an executive
order will resolve these difficulties. Lesser efforts,
even by senior Department of State officials, have not
had the desired results. On September 5, 1973, Acting
Secretary of State Rush sent a letter (Tab 5) to all
departments and agencies calling their attention to
the provisions of the Case Act and providing guidance
with respect to the types of agreements covered by the
Act. While the Rush letter has been helpful in securing
the cooperation of many departments and agencies, clearly
it has been insufficient. Too many officials in other
departments have asserted a right to ignore it.
In March, 1976, the Legal Adviser of the Department
of State sent to Department officers in the field and
to all departments and agencies further detailed guidance
(Tab 5) concerning the criteria applied by the Legal
Adviser in interpreting and implementing the Case Act.
Yet the problem has continued unabated.
In the Department's view, there is no legal question
raised by the draft executive order. The President of
the United States, as chief executive and negotiator
for the nation in international affairs, has the legal
right and responsibility under the Constitution to
approve before conclusion any treaty or executive agree-
ment negotiated by an officer of the U.S. Government.
The President may also require departments and agencies
to consult with the Secretary of State prior to the
negotiation of treaties or agreements, and he may
delegate the power of approval of treaties or agreements
to the Secretary of State. 22 U.S.C. 2656; 3 U.S.C. 301.
This draft executive order has been cleared
personally by Secretary of State Kissinger and by
Attorney General Levi.
Sincerely yours,
Robert J. NcCloskey
Assistant Secretary for
Congressional Relations
Enclosures:
L/T:AWRovine:rfp 7-29-76 x21074
As stated.
Clearances: L - Mr. Leigh
IT - Mr.
EXECUTIVE ORDER
Treaties and Other International Agreements
of the United States
The President is responsible for the conduct of
the foreign policy of the United States. The Secretary
of State is the principal foreign policy adviser of the
President and has primary responsibility in assisting
the President in the conduct of foreign policy. Pursuant
to Section 112a of Title 1 of the United States Code the
Secretary of State is required to publish all treaties
and all other international agreements to which the United
States is a party. Pursuant to Public Law 92-403 (86
Stat. 619, 1 U.S.C. 112b) he is required to transmit to
the Congress all international agreements other than
treaties no later than sixty days after their entry into
force. In view of the fact that the Department of State
and several other agencies of the Government have
responsibilities which result in the conclusion of
treaties or other international agreements, and to
assist the President and the Secretary of State in -dis-
charging their foreign policy responsibilities, it is
necessary to coordinate the formulation, negotiation,
and conclusion of any such treaties or other international
agreements.
NOW, THEREFORE, by virtue of the authority vested in
me by the Constitution and statutes of the United States,
including Section 2656 of Title 22 of the United States
Code, and Section 301 of Title 3 of the United States
Code, and as President of the United States, it is
ordered as follows:
- 2 -
Section 1. The Secretary of State shall be
responsibile on behalf of the President, for coordinating
the formulation of all treaties and other international
agreements proposed for negotiation.
Section 2. Any agency proposing that any treaty or
other international agreement be drafted or negotiated
on a matter within its responsibility shall consult with
the Secretary of State. No officer may negotiate, sign,
or otherwise conclude a treaty or other international
agreement, without my express approval unless he shall
have first obtained the concurrence of the Secretary of
State. Such concurrence may be given for categories of
treaties or agreements, or for specific treaties or
agreements.
Section 3. The final text of any international
agreement other than a treaty shall, as soon as possible
after its conclusion, but in no event later than twenty
days thereafter, be transmitted to the Department of
State, for the attention of the Assistant Legal Adviser
for Treaty Affairs, for transmission to the Congress
pursuant to Public Law 92-403 (865 Stat. 619, 1 U.S.C.
112b).
Section 4. This Order shall apply to any inter-
national arrangement (including, but not limited to, any
agency-level or implementing arrangement) that constitutes
an international agreement, whether authorized by
statute, treaty, or the Constitution. The determination
whether any arrangement or document, or series of arrange-
ments or documents constitutes, or would, if concluded,
constitute one or more international agreements, shall
be made by the Secretary of State.
- 3 -
Section 5. The term "agency" as used in this
Order means each authority of the Government of the
United States, whether or not it is within or subject
to review by another agency.
Section 6. The Department of State is hereby
authorized to issue regulations to implement this
Order.
Section 7. This Order supersedes any Executive
Order, regulation, or delegation inconsistent herewith.