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mining Nicaraguan harbors, in violation of our treaty obligations under the U.N. Charter, the Charter of the Organization of American States and Treaty of Friendship Commerce and Navigation with Nicaragua. The International Court of Justice virtually unanimously held that both actions violated international law.4 In neither of these cases involving serious violations of our international obligations were the wrongdoers appropriately punished.

The diversion of funds to the contras from July through October 1986 not only violated the Boland Amendment, it also violated the judgment of the International Court of Justice in Nicaragua v. United States. We are bound to abide by that judgment, pursuant to Article 94 of the U.N. Charter to which we continue to be a party. During the time period involved, Congress had not authorized activities in violation of the ICJ judgment. Yet that violation received no attention from the investigating committee.

The Executive Branch has consistently disregarded applicable treaty obligations in conducting covert operations. A special Presidential committee in 1954 argued that in combatting communism "There are no rules in such a game. Hitherto acceptable norms of human conduct do not apply."5 President Ford, when asked if the

4c Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), 25 ILM 1023 (1986).

5s. Rep. No. 755, 94th Cong. 2d Sess. 9 (1977) quoting Hoover commission on government organization.

CIA's "destabilization" of the Allende government in Chile violated international law, replied

"I'm not going to pass judgment on whether it is permitted or authorized under international law. It is a recognized fact that historically as well as presently such actions are taken in the best interests of the countries involved."

This cavalier Executive attitude toward our international obligations is contrary to our constitutional principles.

7

Article

VI of the Constitution establishes treaties as the supreme law of the land. Because the Supreme Court decisions have accorded treaties a status equal to that of acts of Congress, the President is required to adhere to the law laid down by those treaties just as he is obliged to obey statutory law. Thus, the Supreme Court has held in Cook v. United States that the Executive power is limited by a treaty, a position supported by the

8

statements of early congressional leaders and statesmen, as well as modern commentators.

While the power of the President to

terminate a treaty is as yet undecided, the Executive clearly has no unilateral power to amend, modify or breach a treaty. The Church Committee concluded the Executive Branch's authority to

"Presidential News Conference 9/16/1974, 10 Weekly Compilation of Presidential Documents 1157, 1162.

7Whitney v. Robertson, 124 U.S. 190, 194 (1888); The Head Money Cases, 112 U.S. 580, 598 (1884).

8Cook v. United States, 288 U.S. 102 (1933); United States v. Decker, 600 F.2d 733, 737 (9th Cir.), cert. denied, 444 U.S. 855 (1979).

9see sources collected in Lobel, The Limits of Constitutional Power: Conflicts Between Foreign Policy & International Law, 71 Va. L. Rev. 1071, 1121-29 (1985).

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undertake foreign intelligence activities can only be exercised ,,10 "in accordance with applicable norms of international law." Even John Marshall's famous speech proclaiming that the President is the sole organ of the nation in its external relations, relied on by proponents of broad Executive power, goes on to state that the President is "charged to execute the laws. A treaty is declared to be a law. He must then execute a treaty . . ."11 Decisions to breach treaty obligations or customary law have

the potential to create international strains and repercussions far more serious than routine foreign policy decisions.

Separation of powers concerns dictate that even assuming that such actions are constitutionally permissible, they should be subject to the greater scrutiny provided by a decisionmaking process involving both houses of Congress as well as the president.

In the face of continued Executive resistance to the notion that it is bound to comply with the terms of a treaty as ratified by the Senate--a resistance recently witnessed in the dispute over the interpretation of ABM Treaty--it is vital that Congress clearly establish sanctions for violations of treaties. H.R. 3665 is a welcome attempt to do just that.

Criminalizing violations of

treaties would hopefully give members of the NSC pause when considering particular courses of action, because they would know that they could be held personally accountable for their actions.

10s. Rep. No. 755, supra at 33.

11 Report of the Congressional Comm.'s Investigating the Iran-Contra Affair, S. Rep. No. 216, H. Rep. No. 433, 100th Cong., 1st Sess. at 390 (1987).

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By providing that Executive officials who violate treaties without Congressional sanction are committing crimes, the statute will aid in enforcing both democratic government at home, and a stable and peaceful international order.

There are three potential objections to a statute such as H.R. 3665 that I would like to address. The first is that criminalizing violations of treaties is unconstitutional because international agreements are often very general and subject to different interpretations. That argument is applicable to many statutes as well; even the Boland Amendment was apparently subject to differing interpretations. Moreover, while international agreements are often drafted broadly and are subject to various differing opinions as to their reach, nations generally agree as to a treaty's core meaning. For example, while there is dispute as to the expansiveness of Article 2(4)'s prohibition against the use of force, all nations agree on certain basic principles. То invade another country is clearly prohibited. Such U.S. actions as the Bay of Pigs invasion, or the Grenada invasion, or mining the Nicaraguan harbors clearly violate those core principles.

The narrowing of somewhat imprecise and broad principles of international law to a universally agreed upon core is not new in American jurisprudence. In 1819, for instance, when Congress enacted a statute prohibiting piracy "as defined by the Law of Nations," serious questions arose over whether this definition was sufficiently precise to permit prosecutions under the act. Justice Story, writing for the Supreme Court, held that it was,

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noting that although there may be a "diversity of definitions" of the crime, "all writers concur, in holding, that robbery, or

forcible depredations upon the sea, . . . is piracy."12

We must not forget that our government believed that certain basic principles incorporated in international agreements were sufficiently precise to impose criminal liability on the Nazis at Nuremberg. Justice Jackson, the United States prosecutor at Nuremberg stated, "if certain acts in violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us."13

A second possible objection to criminalizing Executive covert activity in violation of international agreements is that such a bill would prohibit many such covert actions. Indeed, most major Post World War II covert activities violated our treaty obligations. The 1954 CIA sponsored overthrow of the Arbenz government in Guatemala, the Bay of Pigs invasion, the

"destabilization" of the Chilean government, the Phoenix program in Vietnam and secret war conducted by the CIA in Laos all involved breaching treaty agreements. Yet, that is an argument for passage of this statute, not against it. Our stated policy is

12United States v. Smith, 18 U.S. (5 Wheat) 153, 161 (1820).

13,

Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials, International Org. & Conf. Ser. II, European & British Commonwealth 1, Dept. of State Pub. No. 3080 at 330 (London 1945).