« PreviousContinue »
Germany by the conquering nations during the period of surrender.
Treaty provisions similar to those involved herein have been relied upon by other plaintiffs with a singular lack of success. ...
We conclude that the District Court was correct in holding that no private right of action could be based on the four treaties referred to in plaintiff's complaint.
Plaintiff argues that the seizure of his property and defendants' allegedly wrongful repudiation of the 1948 settlement agreement were torts which violated the law of nations. We disagree.
There has been little judicial interpretation of what constitutes the law of nations and no universally accepted definition of this phrase . There is a general consensus, however, that it deals primarily with the relationship among nations rather than among individuals. "It is termed the Law of Nations-or International Law-because it is relative to States or Political Societies and not necessarily to individuals, although citizens or subjects of the earth are greatly affected by it." von Redlich, The Law of Nations 5 (2d ed. 1937). .
Like a general treaty, the law of nations has been held not to be self-executing so as to vest a plaintiff with individual legal rights
More importantly for purposes of this lawsuit, violations of international law do not occur when the aggrieved parties are nationals of the acting state .
In the instant case, plaintiff was a citizen and resident of Germany at the time of defendants' alleged wrongdoing. Moreover, his complaint did not allege that defendants played any role in the policymaking decision of the German government. Defendants' conduct, tortious though it may have been, was not a violation of the law of nations, which governs civilized states in their dealings with each other.
Succession of States in Respect of Treaties
On July 2, 1976, the reunification of North Viet-Nam and South Viet-Nam was formalized by a declaration of the National Assembly of Vietnam. The name of the newly reunified state is the Socialist Republic of Vietnam.
The Department of State, in its official publication Treaties in Force (January 1, 1977), carried the following note in its bilateral section under the Vietnam heading:
The agreements listed below were in force between the United States and the Republic of Vietnam (South Viet-Nam). The status
of these agreements is under review by the United States. Listed were all bilateral agreements included under the Vietnam, South, heading in the January 1, 1976, edition of Treaties in Force.
In its multilateral section, Treaties in Force (January 1, 1977) listed among parties to treaties and international agreements the Republic of Viet-Nam, the Democratic Republic of Viet-Nam, and the Socialist Republic of Vietnam, “based on the last notice received by the U.S. Government from the depositary for the treaty or agreement in question." In the case of the Articles of Agreement of the International Monetary Fund, the Socialist Republic of Vietnam is listed as a party, “based on notice received from the International Monetary Fund."
Authorization and Appropriation Power of
Congress A memorandum dated April 12, 1976, by Monroe Leigh, Legal Adviser of the Department of State, considered two questions concerning the authorization and appropriation power of Congress in relation to treaties: (I) May a treaty itself serve as an authorization for a subsequent appropriation by the Congress, or is separate authorization legislation required? (II) Is Congress obligated to appropriate the funds stipulated in a treaty?
The memorandum noted initially that article I, section 9 of the Constitution provides that "no money shall be drawn from the Treasury, but in consequence of appropriations made by law," and added:
It is generally accepted, in law and practice, that while treaties are the supreme law of the land, treaties stipulating for the payment of money nevertheless require an appropriation by the Congress and are not themselves sufficient warrant for the payment of funds from the Treasury.
Congress has clearly accepted the principle that a treaty may serve as an authorization for the appropriation of funds. However, in a number of cases a separate authorization has been enacted. The practice is divided and no pattern is easily discernible. With respect to the second issue, whether or not the Congress is obligated as a matter of U.S. law, it cannot, in fact, be compelled to appropriate funds, but a failure to do so would place the United States in breach of its obligations under international law. Despite the recent exception of U.Š. contributions to the ILO (International Labor Organization) and to UNESCO (U.N. Educational, Scientific and Cultural Organization), the Congress almost always appropriates funds which we are committed to spend by a treaty.
The practice of Congress with respect to authorizations and appropriations for carrying out treaty obligations, and the views of authorities on the subject, are discussed further in the following excerpts from Mr. Leigh's memorandum:
APPROPRIATION OF FUNDS The question whether a treaty may serve as an authorization for a subsequent appropriation of funds stipulated in the treaty has not been a subject of legal debate or judicial decision. Rather it is a matter to be assessed in the light of practice and custom. practice is divided as to whether a separate authorization is enacted, although the several instances in which treaties have served as authorizations indicate that the Congress has no objection in principle to that method of funding. Indeed, the Rules of both the House and the Senate establish that the Congress has formally accepted the notion that a treaty may be used as an authorization. A. Rules of the House of Representatives
Rule XXI, paragraph 2 of the current Rules of the House of Representatives, first adopted in 1837, provides in relevant part:
No appropriation shall be reported in any general appropriation bill, or be in order as an amendment thereto, 'for any expenditure not previously authorized by law. (Manual of Rules of House of Representatives, 94th Congress, House Doc. 416, 93d Cong., 2d Sess, 1975, p. 543.)
The current footnote to Rule XXI, paragraph 2, states a principle initially adopted by the House in 1899:
The authorization by existing law required in the rule to justify appropriations may be made also by a treaty if it has been ratified by both the contracting parties (IV, 3587). . . (p. 545.)
In brief, House Rule XXI has been formally interpreted to mean that a treaty may serve as an authorization for a subsequent appropriation of funds. The footnote contains no limitation with respect to the type of treaty that may qualify as an authorization. It should be noted that the footnote was amended in 1972, but without change in the language cited above. Thus the House has given quite recent attention to the problem, and has concluded that in accordance with its prior practice, a treaty may indeed serve as an authorization.
The reference at the end of the note is to Volume IV of Hinds, Precedents of the House of Representatives (1907), Section 3587, involving an appropriation of funds to carry out the obligation of the United States to pay $20,000,000 to Spain under the terms of the 1898 Treaty with Spain. The appropriations bill was under consideration in the House on February 16, 1899, when Representative Charles K. Wheeler of Kentucky raised the point of order that the appropriation was not authorized by law since the treaty had not yet been ratified by Spain and had thus not entered into force ..
It was held that since the treaty had not yet been ratified by Spain it was not yet legally in force, and "Hence the proposed appropriation is ‘not previously authorized by law.'..
The entire discussion in the House rested on the premise that a properly ratified treaty that had formally entered into force did constitute an authorization of funds. ... This position has since been reflected in the formal interpretation of the Rules of the House.
B. Rules of the Senate
The Senate rules do not contain any stipulation like that in House Rule XXI, paragraph 2, nor is there a general rule on appropriations. However, Senate Rule XVI, which deals with amendments to appropriation bills, provides in paragraph 1 as follows:
All general appropriation bills shall be referred to the Committee on Appropriations, and no amendments shall be received to any general appropriation bill the effect of which will be to increase an appropriation already contained in the bill, or to add a new item of appropriation, unless it be made to carry out the provisions of some existing law, or treaty stipulation, or act, or resolution previously passed by the Senate during that session; or unless the same be moved by direction of a standing or select committee of the Senate, or proposed in pursuance of an estimate submitted in accordance with law. (Senate Manual 1975, 94th Cong., 1st Sess., 1975, p. 17; italics added.) In addition, paragraph 8 of Rule XVI provides:
Every report on general appropriation bills filed by the Committee on Appropriations shall identify with particularity each recommended amendment which proposes an item of appropriation which is not made to carry out the provisions of an existing law, a treaty stipulation, or an act or resolution previously passed by the Senate during that session. (Senate Manual 1975, at p. 20; italics added).
Thus, while the Senate has no clear rule governing legal sources of appropriations, its rule on amendments to appropriation bills permits the receipt by the Committee on Appropriations of amendments to such bills where the effect is to increase the appropriation or to add a new item of appropriation, if the amendment is made to carry out the provisions of a treaty stipulation. To that extent, at least, the Senate clearly accepts treaties as authorizing measures.
Apart from the actual practice of the Senate, Rule XVI alone indicates that the Senate accepts treaties as authorizations. If amendments to appropriation bills may be authorized by treaty, there is no sound reason why the initial appropriation bill itself may not be authorized by a treaty. In addition, it is difficult to believe that the Senate would wish to give less effect to treaty provisions than does the House of Representatives. Since the House has clearly accepted, in its rules, that a treaty may serve as an authorization measure, it is believed that the Senate, with respect to its rules, would not wish to do less.
In our judgment, House Rule XXI and Senate Rule XVI together indicate formal acceptance by the Congress of the notion that a treaty may legally provide the basis for a subsequent appropriation of funds, and that no separate authorization measure is required. While a treaty stipulating for the payment of money need not necessarily be utilized by the Congress as an authorization measure, it is legally acceptable to use it in that fashion. Indeed, the Congress has done so on many occasions. C. Practice
there is no consistent practice on the issue, but there are
nevertheless many examples of the Congress utilizing a particular treaty provision for the payment of money as the necessary legal authorization.
One of the more important areas of practice illustrating the inconsistency of the approach is United States membership in international organizations. For example, with respect to the United Nations, funds for the payment by the United States of its share of U.N. expenses as apportioned by the General Assembly are authorized by P.L. 264 (79th Cong., approved December 20, 1945, as renumbered and amended by P.L. 341, 81st Cong., approved October 10, 1949 (22 U.S.C. 287-287e)). On the other hand, the authorization for the U.S. share of the expenses of the Organization of American States is the 0.A.S. Charter, which was approved by the Senate on August 28, 1950 (TIAS 2361). Similarly, payment of the U.S. share of the expenses of the International Civil Aviation Organization is authorized only by the ICAO Convention, which was approved by the Senate on July 25, 1946 (TIAS 1591).
Many examples of each approach may be cited. Other cases in which the treaty or convention alone served as the authorizing measure for the payment of the U.S. share of expenses include the International Telecommunication Union (TIAS 6267; Art. 16); the World Meteorological Organization (TIAS 2052, 5947; Arts. 22, 23); the Intergovernmental Maritime Consultative Organization (TÍAS 4044; Art. 41); the Universal Postal Union (TIAS7150; Arts. 22, 123); the Inter-American Indian Institute (T.S. 978; Art. V); the Inter-American Institute of Agricultural Sciences (T.S. 987; Art. XIX); the Pan American Health Organization (T.S. 714; Art. 60); the International Bureau of the Permanent Court of Arbitration (T.S. 536; Art. 50); the Nice Union of the International Classification for Registering Trademarks (TIAS 7418; Art. 7(3)); the International Coffee Organization (TIAS 7809; Art. 24); and several other technical organizations.
There are several instances in which the treaty and a separate statute taken together constitute the authorization. These include the International Atomic Energy Agency (TIAS 3873, Art. XIV;22 USC 2021);the North Atlantic Treaty Organization (TIAS 1964; 22 USC 1928, 2388); the Southeast Asia Treaty Organization (TIAS 3170, Art. V; 22 USC 2388); the Organization for Economic Cooperation and Development (TIAS 4891, Art. 20; 22 USC 2388); and the International Bureau for the Protection of Intellectual Property (T.S. 379, TIAS 4931, Art. 13; 22 USC 269). Instances in which a separate statute alone served as the authorizing measure include the United Nations Educational, Scientific and Cultural Organization (22 USC 287M-287t); the World Health Organization (22 USC 290-290E); the Food and Agriculture Organization (22 USC 279-279d); the International Labor Organization and other technical organizations.
Over the years, there have been other important examples of a treaty alone serving as authorization for the payment of funds. The 1842 Webster-Ashburton Treaty (TS 119), requiring money to be paid to Massachusetts and Maine as part of their consent to the boundary settlement was treated as an authorization (see Henkin. Foreign Affairs and the Constitution, p. 408). The 1898 Treaty of Peace with Spain (TS 343), from which case derived the current