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the further advice and consent of the Senate; and
(5) the sums referred to in the Supplementary Agreement on Cooperation Regarding Materiel for the Armed Forces and Notes of January 24, 1976, appended to the Treaty, shall be made available for obligation through the normal procedures of the Congress, including the process of prior authorization and annual appropriations, and shall be provided to Spain in accordance with the provisions of foreign assistance and related legislation.
The U.S. Embassy in Madrid communicated the text of the Senate declaration to the Spanish Foreign Ministry by letter. On September 4, 1976, President Ford signed the U.S. instrument of ratification, to which was annexed a copy of the Senate resolution, including the declaration. When instruments of ratification were exchanged with Spain at Madrid on September 21, 1976, the text of the Senate resolution, including the declaration, remained annexed to the U.S. instrument.
A Department of State memorandum, dated August 4, 1976, gave the opinion of the Legal Adviser of the Department, Monroe Leigh, that none of the Senate declarations in this instance had or were intended to have international legal effect. It stated:
In the view of the Legal Adviser of the Department of State, there is no legal requirement obligating the President to include in the instrument of ratification of the U.S.-Spain Treaty of Friendship and Cooperation the declarations issued by the Senate on June 21, 1976, as part of its resolution of approval of that Treaty.
Even in those cases in which the Senate attaches a true reservation or interpretation of a treaty to its resolution of approval, there is no legal rule requiring such reservation or interpretation to be included in the instrument of ratification itself, so long as the reservation or interpretation is communicated to the treaty partner or partners. The most precise statement of that rule is found in section 133 of the American Law Institute's Restatement (Second) of the Foreign Relations Law of the United States (1965), as follows:
(1) When the resolution by which the Senate of the United States gives its advice and consent to the ratification of a treaty states that its approval is subject to a reservation, the President, if he ratifies the treaty, must include the reservation in the instrument of ratification or otherwise make it clear that the assent of the United States is subject to the reservation.
(2) When the resolution by which the Senate gives its advice and consent to the ratification of a treaty states that its approval is given on the basis of an understanding that is set forth or incorporated in the resolution, the President, if he ratifies the treaty, must include the Senate's statement of understanding in the instrument of ratification or otherwise make it clear that the assent of the United States is subject to the understanding, unless, as a matter of international law, the treaty cannot be interpreted otherwise than as stated in the understanding.
(3) When the resolution of the Senate by which it gives its
advice and consent to the ratification of a treaty is not by its terms subject to a reservation or based on an understanding as to the meaning of the treaty, but the record of Senate consideration of the treaty establishes that the Senate attached a particular meaning to the treaty, the President must determine whether, as a matter of international law, the treaty can be interpreted as having that meaning. If he determines that it can, he may exercise discretion as to whether to include an appropriate statement of understanding in the instrument of ratification, or otherwise bring it officially to the attention of the other signatory or signatories. If he determines that it cannot, he has no authority to ratify the treaty unless it is accompanied by a reservation to accord with the Senate's interpretation. (Italics added.)
As a matter of United States custom and practice, the President will normally place the Senate's reservation or interpretation in the instrument of ratification, but there is no legal requirement that he do so, as long as he informs the other party or parties of the Senate action. To require otherwise would, in the view of the Legal Adviser, compel an unacceptable elevation of form over substance. It is the fact of communication that counts in United States law, and not the precise form of communication.
The same is true with respect to international law. Article 23(1) of the Vienna Convention on the Law of Treaties requires that
A reservation, an express acceptance of a reservation and an objection to a reservation must be formulated in writing and communicated to the contracting States and other States entitled to become parties to the treaty.
There is nothing in the Vienna Convention or in its legislative history which indicates that reservations may be communicated only by means of the instrument of ratification. A writing is required, but there is no specification as to the form that the writing must take.
To the extent that the rule expressed in the Restatement and in the Vienna Convention appears to be inconsistent with the views set forth by Marjorie Whiteman in the Digest of International Law, it is the Legal Adviser's judgment that the Restatement and Vienna Convention formulations are correct. Miss Whiteman said that reservations, understandings, declarations of intent, or interpretations, in order to have international effect, are incorporated in the instrument of ratification [14 Whiteman 139]. However, her statement can have no applicability to the instant case, since none of the Senate declarations regarding the U.S.-Spanish Treaty had or were intended to have international legal effect.
The first three Senate declarations are statements of hope and expressions of opinion that have no bearing on the treaty. They are clearly not reservations or interpretations. They do not exclude, limit, or interpret the obligations of the Treaty, but rather are unrelated expressions that cannot bind Spain and thus cannot have international legal effect. Senate declarations (4) and (5) are related to the U.S. method of implementation of the treaty, but they are statements of domestic United States processes, and as such can have no application to Spain. Spain cannot be bound by a Senate statement with respect to U.S. domestic processes that have no bearing on the meaning of the treaty.
In sum, these Senate declarations do not fall within the scope of the rules concerning communication discussed above.
Dept. of State File L/T. For a discussion of the intent of each of the five paragraphs of the Senate Declaration, see S. Ex. Rept. 94-25, 94th Cong., 2d Sess., pp. 7-8.
Agreements with Territories
Before negotiating a Peace Corps agreement with the Cook Islands, the United States asked the advice of the New Zealand Government concerning the ability of the Cook Islands Government to sign such an agreement on its own behalf. The New Zealand Ministry of Foreign Affairs confirmed by note dated November 1, 1976, that the Government of the Cook Islands had legal capacity to sign such an agreement under the terms of the Cook Islands Constitution Act of 1964, under which the Cook Islands became self-governing in free association with New Zealand.
The Foreign Ministry's note stated, in part:
In accordance with this constitutional status the Government of the Cook Islands has exercised and continues to exercise in the field of foreign relations attributes recognized in international law as attributes of a sovereign state.
The Cook Islands Government is not restrained from initiating international negotiations or concluding agreements and there is no constitutional requirement for prior authority or approval from the Government of New Zealand
After calling attention also to the provision of the Cook Islands Constitution Act of 1964 whereby New Zealand accepts responsibility for the external affairs and defense of the Cook Islands, the note added:
. . . It is clear from the Cook Islands Constitution Act and normal principles of international law, that, until the Cook Islands assumes sole responsibility for the conduct of its international relations, New Zealand will remain internationally responsible for the acts and obligations of the Cook Islands.
Dept. of State File No. P76 0174-1788.
Correction of Errors
At the third session of the International Conference on the Establishment of an International Maritime Satellite System, held at London September 1-3, 1976, the United States urged that signature of the Convention on the International Maritime Satellite Organization (INMARSAT) and the Operating Agreement be deferred to permit states to compare the texts in the four languages in which issued and to permit the depositary to rectify any errors. However, the Conference voted 34 to 1 (U.S.), with 8 abstentions, to open the Convention and Operating Agreement immediately for signature.
The Secretary General of the Inter-Governmental Maritime Consultative Organization (IMCO) inserted the following statement in the Summary Record of Sept. 2, 1976, with respect to the process of rectification:
The possibility that a convention adopted by a diplomatic conference may contain some errors is recognized and the correction of such errors is provided for by the Organizations in the United Nations system.
The procedure is the following: if an error is perceived in the adopted text of a treaty, a government may propose to the depositary that the original authentic text in which the error exists-in whatever language-should be corrected. Thereafter the depositary circulates the suggested correction to governments of states participants in the Conference at which the treaty was adopted. Those governments are asked to signify, expressly or tacitly their agreement with the suggested correction. A period of time is specified for reply and if no objection is received by the depositary during that period from any participating state,
the error is corrected in the original adopted text. Thereafter a proces verbale of rectification is issued by the depositary to all interested governments.
This procedure has been followed since 1960 for a number of treaties concluded at IMCO and in the United Nations system. It was used for two treaties concluded in 1972 at a conference jointly convened by the United Nations and IMCO. It has been employed for many of the complex regulatory treaties concluded at IMCO.
U.S. Delegation Report, 3d sess., TD Serial No. 73. For a discussion of the INMARSAT Convention and Operating Agreement, see post, Ch. 10, § 9, pp. 561-563, and Ch. 13, & 2, pp. 647-649.
§ 2 Observance, Application and
Application Private Right of Action
In Miller v. United States, 410 F. Supp. 425(1976), the U.S. District Court for the Eastern District of Michigan held on March 11, 1976, that plaintiff property owners in Michigan who sought to recover for property damage allegedly caused by the United States under the Boundary Waters Treaty with Canada (TS 548; 36 Stat. 2448; 12 Bevans 319) could not be considered direct beneficiaries of the treaty.
Plaintiffs alleged that their property had become submerged from the volume and velocity of water diverted past it by the U.S. Corps of Engineers in implementing the treaty's water diversion. They also claimed that the eroded land, having been submerged under the navigable waters of Lake Huron, thereby became property of the United States for which they were entitled to just compensation.
The Court granted a motion by the United States to dismiss. It held that the plaintiffs could not be deemed direct beneficiaries of an agreement between two contracting sovereigns, and further that they had not exhausted administrative remedies under article 10 of the treaty, the provisions of which were formulated “in terms of administrative, not judicial jurisdiction.” The Court also held that failure to name Michigan as party defendant was fatal to plaintiffs' claim, since Michigan, which was title holder of all lands lying beneath navigable waters within its boundaries, was an indispensable party, citing, inter alia, United States v. Louisiana, 363 U.S. 1 (1960).
In Dreyfus v. Finck, 534 F.2d 24 (1976), decided April 6, 1976,cert. denied October 4, 1976, the U.S. Court of Appeals for the Second Circuit held that the plaintiff could not base a private right of action on four treaties to which the United States was a signatory or a party: the 1907 Hague Convention (36 Stat. 2277; TS 539), the 1928 KelloggBriand Pact (46 Stat. 2343; TS 796), the Versailles Treaty (S. Doc. 51, 66th Cong., 1st Sess., 1919), and the Four Power Occupation Agreement of 1945 (TIAS 3070; 5 U.S.T. 2062).
Action had been brought by a Swiss citizen and resident, formerly a citizen of Germany, seeking recovery from West German citizens and residents for the allegedly wrongful confiscation of property in Nazi Germany in 1938. He alleged Federal jurisdiction on the basis, inter alia, of 28 U.S.C. 1331 and 1350. The former provides for jurisdiction in cases involving more than $10,000 which arise “under the Constitution, laws or treaties of the United States.” The latter provides for jurisdiction in any civil action by an alien for a tort "in violation of the law of nations or a treaty of the United States."
The Court of Appeals, in affirming the District Court's dismissal of the complaint for failure to state a claim upon which relief could be granted, stated:
A United States treaty is a contract with another nation which under art. VI, cl. 2 of the Constitution becomes a law of the United States, . . . It may also contain provisions which confer rights upon the citizens of one of the contracting parties which are capable of enforcement as are any other private rights under the law. ... In general, however, this is not so. . . . Rarely is the relationship between a private claim and a general treaty sufficiently direct so that it may be said to “arise under” the treaty as required by art. III, § 2, cl. 1 of the Constitution, ...
It is only when a treaty is self-executing, when it prescribes rules by which private rights may be determined, that it may be relied upon for the enforcement of such rights. . . . Indeed, even where a treaty is self-executing, Federal jurisdiction under § 1331 will not lie where it is not provided for in the treaty
We find no error in the District Court's findings that none of these dealt with the expropriation by Germans of the property of German citizens, and none conferred any private rights with regard to such property which were enforceable in American courts. The Hague Convention attempted to impose standards of conduct for belligerent nations. The Kellogg-Briand Pact was a declaration renouncing war as an instrument of national policy. The Treaty of Versailles was a reparations and war crimes compact following World War I. The Four Power Occupation Agreement provided for the joint occupation and control of