We have therefore come before you in support of the necessary authorization to provide in fiscal year 1977 the first tranche of assistance, so that the treaty can be given life and meaning at an early date.

Thank you, Mr. Chairman.

Mr. FASCELL. Thank you very much, Mr. Ambassador. Does either Mr. Bergold or Mr. Laingen want to add anything at this point or should we go right on? Mr. Solarz?

Mr. SOLARZ. Thank you, Mr. Chairman. Mr. Ambassador, I gather that you played a central role in negotiating this treaty with Spain. I wonder if I could begin by asking you to address yourself to the authorization problem about which the chairman of our committee wrote a letter to the chairman of the Foreign Relations Committee in the Senate. This letter particularly questioned the extent to which, even with the language that was added to the Senate resolution making it clear that any moneys appropriated as a result of the treaty shall be made available for obligation through the normal procedures of the Congress including prior authorization-nonetheless the treaty, in effect obligates the Congress to authorize and appropriate the money anyway once the treaty is approved.

In other words, I am not quite sure what the meaning of the inclusion of that language is. Is it your interpretation that, if the Senate ratifies the treaty, the Congress has a constitutional obligation? Does it simply have a moral obligation? Is it under no obligation as a result of the inclusion of that language to automatically authorize and appropriate the funds called for in the treaty each year?

Mr. MCCLOSKEY. It is our view, Mr. Congressman, that, in ratifying the treaty, it and all components thereof is, to put it one way, the law of the land, and it is my understanding that in the hearings and in reporting out the treaty by the Senate Foreign Relations Committee it was stated that the Senate is undertaking to support all of the commitments in the treaty.

Now, with respect to the-how the authorization of the money is to occur, it would have been our preference to have had a statement that the money would be authorized once for the entire 5 years. We have, however, accepted what I understand to be a consensus of those in the Congress interested in this subject that the normal authorization process, which is to say the yearly authorization process, will be brought to bear each year as it considers assistance for Spain.

Mr. SOLARZ. But is it the interpretation of the Department that, once the treaty is ratified, that the Congress is constitutionally obligated to provide the money?

Mr. MCCLOSKEY. That would be our view. Yes, sir.

Mr. SOLARZ. What would happen if the House of Representatives, in which appropriation bills originate, decided not to authorize or appropriate the money?

Mr. MCCLOSKEY. That could in that circumstance call for a renegotiation of the treaty. The negotiations with the Spanish Government were that it undertook to provide certain facilities for U.S. use in Spain for a period of 5 years. The United States in turn in the negotiations said that it would ask Congress to approve the level of funding that was agreed to in the negotiation.

If Congress in its wisdom chose in any given year during the life of the treaty to act otherwise than to appropriate the yearly amounts, the Government of Spain could call for a renegotiation.

Mr. SOLARZ. I understand that, but, if your legal analysis is correct, then presumably the administration could go to court and have the court mandate the Treasury to write the appropriate checks on the grounds that the treaty was the law of the land and that it had been ratified. The treaty called for these appropriations, so any action by the Congress was irrelevant.

Are you saying that, in point of fact, if the Congress doesn't vote to authorize and appropriate the funds, that they would not be available?

Mr. MCCLOSKEY. Well, you raise a question, I am frank to tell you, or at least an extension of a question that has been raised before that I had not contemplated. That is to say, would the executive branch take the matter to the courts? I wouldn't be prepared to say in this specific case even hypothetically.

I can answer hypothetically to a more limited degree. That is, if the Congress failed in any one year to authorize and/or appropriate the moneys, we have a serious substantive problem with the treaty and the Government of Spain.

Mr. SOLARZ. So you are saying that, if Congress didn't affirmatively act to authorize and appropriate the funds, then the funds. presumably would not be forthcoming, the language of the treaty notwithstanding.

I am just trying to get a sense of where we stand legally. We don't have anything to say about whether or not the Senate ratifies the treaty, but, if it does ratify the treaty, as I presume it will, I am interested in finding out what the legal and constitutional status is next year when we get the foreign aid bill.

Mr. MCCLOSKEY. Well, I only hesitate in my responses, Mr. Solarz, to show that I think between the executive and the Congress we have before us a somewhat unique document. That is to say, a treaty governing a base relationship which encompasses certain amounts of money that the U.S. executive branch has committed to seek from the Congress.

There are some rough parallels in precedent to this, but nothing identical. We take the view that, if the Senate under its constitutional privilege ratifies the treaty, it ratifies everything in it, unless it expresses certain reservations.

Now, however, because the Constitution says that money bills will originate in the House of Representatives, we have tried to, together, work out a practical solution, and I thought that we had pretty well gotten there.

Mr. SOLARZ. You would contend, I assume, that if the treaty is ratified, the Congress certainly has a moral obligation to provide these funds?

Mr. MCCLOSKEY. I would. Yes, sir.

Mr. SOLARZ. In the context that the Congress through the action of the Senate would have committed itself to do just that? Mr. MCCLOSKEY. Yes, sir.

Mr. SOLARZ. But what about the legal obligation? That is where I don't seem to be able to get a clear answer. Is it your judgment

that, once the treaty is ratified, funds have been legally approved for the duration of the treaty? Or is it your contention, as I think you were saying in response to the previous question, that while morally the Congress may be obligated to provide the money-since, according to the Constitution, money bills have to originate in the House-if the House chose not to live up to its moral obligations, then the money would not be forthcoming?

Mr. MCCLOSKEY. Well, it seems to me logical to conclude that there is a legal obligation also, if I am correct that in the ratification of the treaty it is, to use a colloquial phrase, the law of the land. It would seem to me logically then to conclude that the Congress and I guess I had better say the Senate has at least undertaken to support the commitment of all of the funds that are requested therein.

Mr. SOLARZ. I am not a constitutional lawyer, but I would have some questions about the extent to which the Senate can constitutionally deprive the House of powers it derives from the Constitution. If your argument is correct, since the treaty is the law of the land, once the treaty is approved, the money has to be made available. That would imply that, if the House did not approve the appropriations or authorizations, that you would be able to get the funds anyway, if necessary by going to court.

Mr. MCCLOSKEY. Well

Mr. SOLARZ. Sending the Attorney General in presumably to the Supreme Court or wherever he goes in getting a writ of mandamus or I don't know what, obtaining a court order saying you are entitled to draw a check on the Treasury to these amounts.

Mr. MCCLOSKEY. Well, I can only again say that you have raised an abstract question that I feel incompetent to give an answer which is something of an oath in blood. I don't know the answer, but I can say that there have been previous treaties, the original Panama Canal Treaty being one example, in which there was a stipulated appropriation of congressionally funded money for a period of years, and that bound that Congress of the United States.

Mr. SOLARZ. I think it would be helpful if you could perhaps submit an answer for the record after consulting with the Legal Adviser to the State Department, because it seems to me that these questions at some point are going to be raised.

Either the reservation added by the Senate has legal meaning or it doesn't. It is not clear to me whether that was simply put in as some kind of a face-saving device which has no practical effect-since the money presumably would be available anyway-or it does mean something legally in the sense that, in the absence of an authorization and appropriation, the money would not be forthcoming? I think it would be helpful to have a more definitive judgment from the Department on that question.

[Subsequently, the Department of State submitted the following information:]

LEGAL SITUATION THAT WOULD EXIST IF THE HOUSE FAILED TO AUTHORIZE APPROPRIATIONS TO IMPLEMENT THE TREATY

The question has been raised as to the legal situation if, once the Treaty is ratified, the House of Representatives were not to approve the authorization or appropriations.

A treaty, when ratified by the requisite parties, constitutes the law of the land. As expressly recognized by the Senate, the United States will be bound by the Treaty with Spain to carry out all the undertakings therein, including those with

regard to financial assistance. The decision to meet those obligations on an annual basis under the regular foreign assistance authorization and appropriation process does not alter the nature of that commitment.

It is somewhat peculiar, at best, to speak of a legal right of Congress to violate the law of the land. However, there is an old and academic question, which remains with us since the early days of the Republic, about the Constitutional power of the Congress to place the United States in violation of its duly established and legally binding international commitments. There may be no legal remedy should Congress refuse to appropriate the required funds. However, it is to the credit of the Congress that the Constitutional question has remained largely academic.

Mr. SOLARZ. Let me ask you a somewhat different question. Some objections have been raised to the treaty on the grounds that we have a very real interest in the development of democracy in Spain. Spain is now at a political crossroads. It is not clear that they are going to move in a more democratic direction. The forces of reaction have not yet thrown in the towel. Repression is still more the rule than the exception, I gather, in Spain.

The argument has been made that rather than approve this treaty now, when it is not clear what the future holds for the people of Spain, we ought to wait and see whether or not a genuine democracy takes root in that country.

On the other hand, some have said that the approval of this treaty would somehow objectively strengthen the forces of democracy within Spain. I wonder if you could address yourself to that in terms of the impact you think approval or rejection would have on the prospects for democracy in Spain and why you have come to that conclusion?

Mr. MCCLOSKEY. I would like to begin by saying that this treaty is the outgrowth of a relationship that began in 1953 in Spain and has therefore certain antecedents and did not spring into existence with the negotiations that began last year.

So, taking that history into account, it would seem to me, even if the present situation did not obtain in Spain, that we would be unwise, extremely unwise, to reject this treaty.

I don't think it is fair to conclude that repression, rather than opening or however one may choose to describe the situation, is the current way of life in Spain. Indeed, we have been impressed with the moves toward liberalization that have been undertaken just since the accession to the throne of the King late last year.

Mr. SOLARZ. At this particular moment though, you would not characterize Spain as a democracy?

Mr. MCCLOSKEY, No; and I don't think that many people expected Jeffersonian democracy in the first months of a change of regime.

Mr. SOLARZ. I understand the problems they have. What I am trying to get at is the extent to which the approval of this agreement increases the prospect for the development of genuine democracy or the extent to which it impairs those prospects. That is what I would really like a political judgment on. Would it help?

Mr. MCCLOSKEY. I have no hesitation in saying it cannot do anything but assist.

Mr. SOLARZ. In what way?

Mr. MCCLOSKEY. The further and greater liberalization of political life in Spain.

Mr. SOLARZ. In what way? How precisely would it accomplish this? Mr. MCCLOSKEY. I think the relationship that Spain has had with the United States for these past 20 to 25 years has been its one anchor

in the West. It is a curious thing that during those years, while other governments in Western Europe would not acknowledge Spain in a variety of ways, no one ever quarreled that the United States should maintain a relationship it had with Spain.

Now, there are many reasons for that which are not particularly germane to your question.

I think that, if, particularly in this period, when Spain has undertaken to liberalize its political system, the United States were to reject this treaty, it would be to turn back Spain and give much more comfort to those who would oppose liberalization.

Mr. SOLARZ. Why would those who are opposed to liberalization in Spain take comfort from the rejection of this treaty?

Mr. MCCLOSKEY. One possibility is that it would feed those who believe that Spain can and should remain isolated from the West. I think, for a number of reasons, that would be the worst development that Spain could contemplate, because there are a number of objective factors, it seems to me, both strategic and economic, that argue strongly for greater integration of Spain within the Western community.

Mr. SOLARZ. Do you think that the approval of the treaty at this point, prior to the establishment of a genuine democracy in Spain, could be interpreted by the Spanish people as an indication that the United States was essentially indifferent whether or not democracy developed in Spain-particularly in view of the fact that the treaty lasts for 5 years and in the event they don't move in a more democratic direction, the treaty would remain in effect?

Mr. MCCLOSKEY. No; I don't think so at all.

Mr. SOLARZ. Just one or two other questions. I wonder if you could talk a little bit about the strategic significance of this agreement with respect to our position in southern Europe, particularly in light of some of the developments that have taken place in the southern flank of NATO? I have in mind the difficulties we have encountered with both Greece and Turkey as a result of the conflict over Cyprus and the possibility of the historic compromise in Italy with whatever implications that might have for a diminution of the role of Italy in the NATO alliance. This, of course, is a large hypothesis, but assuming that our position in southern Europe deteriorated somewhat politically and militarily, what significance, if any, does this agreement have in terms of enabling us to maintain a position in that part of the world? Mr. MCCLOSKEY. Complementary to the desired continued use by the United States of these bases in Spain, it is a matter of U.S. policy to support ultimate or eventual membership for Spain within NATO.

Given that in addition to that, the bases that the United States uses in Spain are quite an important logistical backup for our commitments to NATO. One of our bases in Spain is the most important gunnery-holds the most important gunnery range in Europe, and our aircraft from central Europe come down to practice on this range, even though they are not based in Spain.

I think it fair to say that, even though Spain is not a member of NATO, the United States commitment to NATO is advanced better by the use of the bases in Spain than by some military facilities that it might enjoy in some of the other member countries of NATO, so