Exhibits and Documents submitted by Nicaragua and the United States of America in connection with the Oral Procedure on Jurisdiction and Admissibility

EXHIBITSAND DOCUMENTS SUBMITTEDBY NICARAGUAAND THE UNITEDSTATESOF AMERICAIN CONNECTIONWITHTHE ORAL PROCEDURE ON JURISDICTION AND ADMISSIBILITY DOCUMENTS DÉPOSÉS PARLENICARAGUA ETLES ÉTATS-UNISD'AMERIQUE AUX FINS DE LAPROCÉDUREORALE RELATIVEÀ LACOMPETENCE ETÀ LARECEVABILITÉ EXHIBITS SUBMITTED BY NICARAGUA IN CONNECTION WITH THE ORAL PROCEDURE ON QUESTIONS OF JURISDICTION AND ADMISSIBILITY ExhibitA 1. "NICARAGUANS SAY THEY WOULD SIGN PROPOSED TR~~ATY",NEW YORK TIMF3, 23 SEPTEMBER 1984 2. "US OFFICIAL1)ISCOUNTS PLEOGE BY NICARAGUA", Nb'W YORK TIMES, 24 SEP- TEMBER 1984 3. "US URGE ALLIIS TO WECT CONTADORA PLAN", WASHINGTON POST, 30 SEP- TEMBER 1984 4. "W. EUROPEANS TO AIDCENTRAL AMERICANS", WASHINGTON POST, 30SEPTEUBER 1984 5. "LATINPEACE PLAN : WHY THE US BALKS", NEW YORK TIMB, 3 3TOBER 1984 6. "US VERSION OF CONTADORA OFLAFI OISPUTED",WASIIINGTON POST,3 3TOBER 1984 [Nol reproduced] MlLlTARYAND PARAMILITARYACTIVITIB Exhibit B 1. LETTER TO ESTEBANMENDOZA. MINISTEROF FOREIGN RELATIONS. HONDURAS. FROM MANLEY O. HUDSON ,ARVARD UNIVERSITY, CAMBRIDGE, MASSAC HATEDETIS, 12 AUCUST 1955 Law School of Harvard University, Cambridge 38, Massachusetts August 18, 1955. Your Excellency: 1. 1am confronted with a difficulty in connection with the o~inion which 1 am writing for you on theond duras-~ic aues~in.aWill y& please let me explain it to you, and if you can send me anything on it, 1believe it might make it possible for us to complete the work. 2. On 24 September 1929,Nicaragua accepted the Article 36, paragraph 2, by making the following declaration: On hehalf of the Republic of Nicaragua, 1 recognise as compulsory un- conditionally thejurisdiction of the Permanent Court of International Justice. Geneva, Septemher 24, 1929. (Signed)T. F. MEONA. At this date, Nicaragua had not signed the Protocol of Signature of the Permanent Court of International Justice, and the action of 24 Se~tember 1929was not imme- diatelv effectivebecause Nicarama had not ratified the Protocol of Sienature. u ~ ~ ~ ~-~ ~ -~~ ~ ~ ~ 3. IiJid niii titke ihis astton until on 29 Noveniber 1939,uhen ihe Niiiiraguitn Governmeni notificdthe Seiretary-Cienerdlof ihe league of Naiioni hy iclegrliph OCNicardrua'r rdtificaiiiin of ihe Proincol of S~~nitiiire ihe teleerdm Ji~csnnt seem to have mentioned the acceptance of comp;lsory jurisdictioi, though 1am no1 certain of this. Of course, Nicaragua should have sent a ratification of the Protocol and the Statute of the Court. 1can't find that they did so. 4. Nicaragua is still listed as a State which is one of those which has signed the Protocol of compulsory jurisdiction. Sed quaere. 5. 1 mus1 confess that the prohlem has interest. A telegraph hy Nicaragua would not he a way for them to add to the legal consequences of the action of 1929.So that from September 192910the signature of the Charter of the United Nations, 1doubt whether Nicaragua did anything to remedy the situation. She certainly was not a signatory. 6. However, on 26 June 1945, Nicaragua signed the Charter of the United Nations, and ratified it 6September 1945: it became effective on 24 Octoher 1945.This did not, in any way, affect the compulsory jurisdiction. 7. The problem that worries me is, can Nicaragua be bound by the clause today? Can you send me any documents which would enlighten this action? Warmly yours, (Signed) Manley O. HUDSON. EXHIBITS SUBMlTIED BY NICARAGUA 297 2. LETTER TO MANLEY O. HUDSON FROM ESTEBANMENDOZA OP 4 JANUARY 1956 (DATED 4 JANUARY 1955) Secretaria de Relaciones Exteriores de la Republica de Honduras Tegucigalpa, D.C., 4 de Enero de 1955. Dear Judge Hudson : Dr. Davila and 1have read verycarefully your opinion on Ourboundary ques- tion with Nicaragua. Even tbough this opinion is not entirely favorable to the interests of Honduras, as this Government would wish, we consider it highly valuable as it comes from one of the most prominent world authorities on Inter- national Law, and due to the fact that said opinion, clear and final, has led us to seek a new solution to the problem. 1wish to inform you, very confidentially, that while in Washington 1talked for two hours with Mr. Holland, to whom 1 acquainted in detail with Our houndary problem and Our intention to submit same, if necessary, to the Organization of American States. Mr. Holland showed a great deal of interest and promised, that although in an informal way, he would advise Nicaragua to accept the jurisdiction of the International Court of Justice. 1learned later that the Nicaraeuan Ambassador in Washineton had been called hv Mr. Holland and that he hagleft shortly after for ~icaragua, presumably to~reiort to his Govern- ment. 1am waiting for results of said move and on learnina-definite news I shall be glad to communicate same to you. ............................ On behalf of the Honduran Government 1herebv exnr,ss .o ~ ~~ ~,~dee~est gratitude for your cooperation and endeavors in this highly important matter, in which we trust you willcontinue to render us the assistance of your experience and knowledge. Very truly yours, (Signed) Esteban MENDOZA. - 3. LE~R TO MANLEY O. HUDSON EROM ESTEBANMENDOZA, DATED 9 MAY 1956 [Spanishrexrnoi reprnduced] Secretaria de Relaciones Exteriores de la Republica de Honduras Tegucigalpa, D.C., May 9, 1956 Honorable Dr. Hudson: ............................ Yesterday 1received some news which 1 deem of great interest for requesting the execution of the Award of King O/ Spain :before the International Court of Justice. As youwillsee,it issomethingwhichbears relation withreport you sent me. The Honduran Ambassador to Managua has sent me copies of Lu Cacera, Nicaraguan officialdaily, corresponding to various dates of the year 1935, bearing publication ofminutes of the Nicaraguan Senate and of the Nicaraguan Chamber of Deputies, ratifying Protocol of Signature and Statute of the Perma- nent Court of International Justice. 1have ordered translation of these documents and will fonvard same to you as soon as possible.298 MILITARYAND PARAMILITARYACTIVITIES Up to this moment we have beenunable to find the Ratification Decree ofsaid Protocol. However, in view of the fact that Minutes of the Senate and of the Chamber of Deputies were published in the Nicaraguan officialdaily, I consider that this alone constitutes sufficient evidence to estahlish that Nicara- gua ratified the Protocol and the Statute and therefore declaration made by Mr. Medina in 1929 acknowledging the Court's compulsory jurisdiction, isat present in full force. The findingof these documents makes me feelmore optimistic and 1tmst that we will soon find the Ratification Decree. At anv rate. 1would liketo have vour opinion in thi, maiicr aficr you hiiw rcad the abo\e nieniiorid raiifiiation minuies. I iakc plcasurc inexprcssing IO yiu ,ince more m) dwp apprcL.iaiionfor )Our valuahle cooperation and beg to remain Verytmly yours, (Signed) Esteban MI:NIX>ZA. Law School of Harvard University,Cambridge 38, Massachusetts. 9 May 1956. My dear Mr. Minister: 1have another thought on the letter of 2 May 1956. 1. 1 am not too much vut off hv the fact that the Nicaramian ~rovosal would mean that wehold up the ~~~licat~on for sevenmonths plus.That rsnAtverylong. 2. The Nicaraguan Government makes theproposal of postponement. There is no onus falling on you as a consequenceof accedingto that postponement. 3. 1 think it is possible that we could gel up the Case hy that time. It would then be possibleto filethe Application and the Case together. With warm regards, 1am Sincerelyyours, (Signed) Manley O. HUDSON. P.S. The above is independent of the condition that you would attach to Nica- ragua's action, namely, that she recognizesthe declaration of Septemher24, 1929. 1 think it is possible for you to say that the declaration of 1929was put into force as a consequence of the ratification of the Protocol and Statute of Novem- ber 29, 1939. Law School of Harvard University, Cambridge 38, Massachusetts. 15May 1956. My dear Mr. Minister: ............................ 1. 1am much interested in the news sentto you by the Honduran Amhassador FIIHIBITSSUBMIITED BY NICARAGUA 299 10Managua. According to him, the Niraragulin la C;ü<.zroa$publishcd minutes of the Nic~r~guanScnate and Chambcr of Dcputies ratification of the Pri>to~.ol oi Siandturc and the Statute of the Permanent Court ni Inirrniitioniil Justicc. I shallawait most eagerly the receipt ofthe documents which you are fowarding to me. 2. 1 am a bit upset by the mention of 1935.1 had no1 hefore known of that date as being material. We shall, however, get out the LaGucetu here, and shall see what is availahle on that. Please send me the translation of the documents, and the original, as soon as possible. 3. 1note that you havebeen unahle to find the Nicaraguan Ratification Decree of the Protocol. The situation was as follows: On Septemher 24, 1929,Nicaragua accepted thejurisdiction of the Court; Nicaragua was not at the time a Member of the Court. It depended upon Nicaragua's becoming a Memherof the Court. On Novemher 29, 1939,1have argued that Nicaragua became a Memher of the Court, and consequently that she became bound by thejurisdiction of the Court. 1explained the lack of an instrument of ratification by saying that it may have been due to lack of international communications in 1939. 4. You ask me as to whether finding the minutes of the Senate and Chamher of Deputies "alone constitutes suficient evidenceto establish that Nicaragua rati- fied the Protocol and the Statute and therefore declaration made by Mr. Me- dina in 1929acknowledging the Court's compulsory jurisdiction". This seems to me to take an optimistic and hopeful view. 1 should dislike presenting that as evidence of that fact, but this would depend on what is in Lu Gucetu. 1 shall have to see that first. We are sending for theLa Gucetu today, and 1will write you further. With deep expression of my warm regard for your valuable cooperation, 1remain Very sincerelyyours, (Signed) Manley O. HUDSON. 6.LEnER TO MANL6Y O. HUDSON FROM FSïEBAN MENDOZA, DATED 18MAY 1956 /Splinish rexrno1reproduced] Secretaria de Relaciones Exteriores de la Repuhlica dc Honduras Tegucigalpa, D.C., May 18, 1956. Distinguished Doctor Hudson : In fulfillment of the promise made in my previous letter. I am pleased to enclose English translations of the Minutes of the Scnate and Chamber of De~uties of Nicaraeua. in which aDwar the ratification made in the vear 1935 IO ihc Protocol of ~knaturr 2nd Ststutes of the Pcrni;incntCourr I>avilï. uho is tcmp~irlirilyIn th,, cil". and 1.arc of the opinion th:,( with these documents we have a sure hasis on which to establish the iurisdiction and competency of the International Court of Justice to resolve Chepetition which Honduras is to present against Nicaragua. In the very near future I will also send to you the translation of the Minutes of the Senatc and Chamber of Deputies of Nicaragua, ratifying the Treaty which was entered in 1928 into between Nicaragua and Colombia, under the terms300 MILITARY AND PARAMILITARYACI'IVITIES of which recognition is made that the sovereignty and complete dominion of Nicaragua extend to the Cape of Gracias a Dios. You will seethat in such officialMinutes, no1even a slight allusion or reservation is made on the part of Nicaragua with respect to any other territory beyond the Cape of Gracias a Dios. These documents will also serve for the purpose of proving, that even though indirectly, Nicaragua recognized in said Treaty the validity of the Award ofihe Kingof Spain. 1am concludinn the ore~aration of a lis1of comments to the draft that vou sent me with respëct to ihê~~~lication which is to be presented to the COUA. 1have received your letters of the 7th and 9th of this month, the contents of which 1have noted. When 1suggested that the Chancery of Nicaragua make a formal declaration confirming the validity of the Declaration made by Mr. Medina in 1929, 1did not then have available the Minutes, translation whereof 1now send to you. In view of the lack ofreliability on the part of the Government of Nicaragua with respect to the execution of the Awardof 11e ingof Spain,we have no confidence in a simple promise of such Government to appear hefore the Court, when the petition for the execution of the Award is presented. On the other hand, if the Nicaraguan Chancery makes the declaration in the general form suggested by us, that is to Say, without making any allusion to the Nicaragua-Honduras houndary question, two results would be obtained: (a) Assuring the competence of the Court for the purpose of resolving the petition; and (b) Assuring that the Nicaraguan people have no knowledge of the matter, in viewof the fact that for political reasons, General Somoza does not deem it convenient that the Nicaraguan people know what he expects to do, prior to his election. ............................ Manifesting my greatest consideration, 1beg to remain Respectfully yours, (Signed) Esteban MENOWLA. 7. LETTER TO BSTEBAN MENDOZA FROM MANLHY O. HUDSON, DATED 23 MAY 1956 23 May 1956. My dear Mr. Minister: 1.1 thank you very much for having sent me the English translation of the Minutes of the Senate and Chamher of Deputies of Nicaragua in 1935. 2. Since you called to our attention the year 1935, we have been examining La Gaceia of Nicaragua, and Our search has yielded about the same results as yours. We have the records of the legislative proceedings, including those of February 14, 1935and July 11, 1935 (La Gaccru,Vol.39, No. 130,p. 1033;and No. 207, p. 1674),showing the approval of the Protocol of Signature and Statute of the Permanent Court. 3. 1 wish 1 could share the view which you and Dr. Davila have that the documents supply a "sure basis on which to estahlish the jurisdiction and competency of the International Court of Justice". 1am inclined to think that this is going a little too fast. We have not discovered any document by which EXHIBITS SUBMITTED BY NICARAGUA 301 the President has ratified the Protocol of Signature, or any document which he signed and which he sent forward to the Secretary-General of the League of Nations as required by the Protocol of Signature of Decemher 16, 1920: the Protocol says that "Each Power shall send its ratification to the Secretary- General of the League of Nations: the latter shall take the necessary steps to notify such ratification to the other signatory Powers". It would he normal for such texts to he printed in La Gacera.The Secretariat of the defunct League of Nations has no record of ever receivingthe instrument of ratification, but 1shall verify this. 4. 1 shall he glad to have the translation of the Minutes of the Senate and Chamher, approving the Treaty hetween Nicaragua and Colomhia of 1928.We already know it was ratified, for it was puhlished in the LeagueofNarions Treafy Series (Vol. 105,p. 337ff.), which requires ratification. With assurances of high esteem, Very sincerelyyours, (Signed) Manley O. HUDSON. 8. LETTER TO BSTEBANMENDOZA FROM MANLEY O.HUDSON DATED 1 JUNE 1956 Law School of Harvard University, Cambridge 38, Massachusetts My dear MI. Minister : 1. 1have this morning your letter of May 26, 1956,and 1want to rhank you very much for your criticism of my draft. It has been a terrificjob to me, and 1 appreciate it al1the more that you could take the time to review it. 1shall review your points one hy one. 2. You will note in my revised draft that there are many changes made. Some of these changes hear upon the points that you have made, but perhaps they do not do so sufficiently. 3. 1do not think that it is "according to international law and current prac- tice" that there should he any indication of previous difficulty. At any rate, it willsufficientlyappear from my Application that there isa serious disagreement. In this connection, 1am surprised to hear that Honduras has sent commiinications on July 11, 1955,and January 12, 1956,to Nicaragua. 1don't know what these communications involve, but 1 urge you very much to hurry up the copies for me. It on Septemher 29, 1955,Nicaragua used the same words as in 1912, it is not necessary that we should review that; but if they used different words it mÿy be necessary for us to pay attention to it. 4. Your point about the Nicaraguan Senate and Chamher of Deputies having ratified the Protocol of Signature and the Statute of the Court seerns~~~ me entirely superfluous. They Lave consenredto the ratification, at the most. 1wish it were true, but it cannot he true according to the Nicaraguan Constitution. 1 wrote you a letter yesterday which explains my stand on this. 5. 1am glad to get your point about the location of Danli. 1knew that Danli was in Honduras, but somehow it slipped me. 6. 1do no1agree that weshould ask for indemnity for the expense of Honduras in opposition to what Nicaragua has done. It has heen ton many years, and too302 MILITARYAND PARAMILITARY ACTIVITIES much has been done. However, 1think that we might ask for the expense of this Court action. I think so for the time, at any rate, and 1shall think further on it. With assurance of my high esteem, 1am Faithfully yours, (Signed) Manley O. HUDSON. Secretaria de Relaciones Exteriores de la Repuhlica de Honduras Tegucigalpa, D.C., 4 de Junio de 1956. Honorable Judge Hudson: 1have the honor to refer to your letters of May 23rd and 31sl of 1956. 1 note that you are no1 of the opinion that ratification hy the Nicaraguan Senate and Chamber of Deputies to Protocol and Statute of the 'Permanent Court of lnternational Justice is sufficient for establishing the jurisdiction of present International Court of Justice, due to the fact that the Nicaraguan President has no1taken any steps to "ratify" said Protocol and send same to the Secretary of the League of Nations, as he was supposed Io do in accordance with stipulations of said Protocol. In this regard allow me to state that in Honduras and Nicaragua, as well as in most Latin American countries, procedure for ratifying international treaties is diferent from that applied in the United States. In Honduras and Nicara- gua, once a treaty or convention has been suhscribed, the President ofthe Repub- lic approves it through a special decree and submits same to the Legislative Chambers for ratification. Therefore, it is the Legislative Chambers and not the President, properly speaking, who ratify treaties and once same are ratified the onl, rea.irement to be fulfilled is that the President should effect exchanee or deposit of ratification, whether il be a hilateral or multilateral treaty. 0; the other hand, in the United States the Senate with a two-thirds majority of votes present, merely gives ils advice and consent for the President to ratify treaty, should the latter deem it convenient to do so. Therefore, in the United States - contrary to procedure in force in our countries - the President and not the Senate has the power to ratify treaties. In this respect, Prof. Julius W. Pratt in his book entitled A Hisiury of UnitedStates ForeignPf~licy, on page 17,States: "lt is Io be em~hasized here that. ~..ul.r oninion and nhraseoloev 10 -. the contrilry notwithstanding, ihc Sen~tcdocs not 'ratify'ireiltics Itrncrcly givcs 11sadvicc and conicnt in Fd\or ui ihc ircdty Ratification isan cxecutii,e aci. jxrfornicd bv the President alter the Scnaic hïscon~cntcd I'hc I'rc~idcnt. howéver,is no1 iequired to ratify a treaty that the Senate kas approved." In viewof the fact that the Nicaraguan LegislativeChambers have ratified the Signature and Statute Protocol, it is to be expected that Ratification Decree was also issued and we are anxiously searching for same, even in the publications of the Congress Library in Washington. If, as we hope, this decree is finally located, the only missing requirement would he to fonvard such ratification instmment to present Secretary of the United Nations, thus fulfilling, although late, offer EXHIBITS SUBMI~D BY NICARAGUA 303 made by the Nicaraguan Chancery by special cahle, in 1939,to the Secretary- General of the League of Nations. On the above expressedreasons hoth Dr. DAvilaand 1have hased our opinion. Nevertheless, neither of us pretend that our opinion he conclusive. Herewith enclosedyou will find translation of notes exchanged betweenHon- duras and Nicaragua regarding the execution of the Award of llis Majesiy the King ofSpain. Allow me to offer you once more, most Honorable Judge, my deep esteem and consideration. Very truly yours, (Signed) Esteban MENUOZA. 10. LEITER TO MANLEY O. HUDSON FROM FS'STEBAN MENIXZA, DATED 6JUNE 1956 Secretaria de Relaciones Exteriores de la Republica de Honduras Tegucigalpa, D.C., June 6, 1956. Distinguished Dr. Hudson : ............................ Due to the existing dissenting opinions of Honduras and Nicaragua regarding the validity or invalidity of the King of Spain's Award,we do not believe that it is possible to submit question, through a Special Agreement, to the decision of the International Court of Justice, and in such a case we would have to start proceedings through an Application. Yesterday 1had the pleasure to receive the draft of Application by Honduras against Nicaragua, which 1consider a juridic work of great merit for initiating the defense of the rights of Honduras. However, please allow me to makc a few remarks thereon : (a) It appears on page 6, referring to the Nicaragua Situation, that the Pro- tocol of Signature and the Statute of the Permanent Court of International Justice was signed on September 14, 1929,but that the Protocol was not ratified until about ten years had passed. It seemsto me that this statement is not in accord with the facts. as ratification of the Statute and Protocol bv the Nicaraguan Senatelook on February 14, 1935,and by the chamber of Depulies on July 11, 1935, such as appears on page 7, numeral 12 of Application. (b) 1wish to make it clear that the Nicaraguan LegislativeChambers did ratify, in fact, the Statute and Protocol, and that they not just consenied to ratification ofsame. (c) Don't you think it is necessary to mention the las1notes exchanged between the Honduras and Nicaragua Foreign Offices,trying to obtain execution of the Award of Spanish King through a direct agreement between both countries? 1deem it an honor to remain, Honorable Judge Hudson, Verytruly Yours, (Signed) Esteban MENDOZA304 MlLlTARY AND PARAMlLlTARY ACTlVlTIES 11.LEITER TO MANLEYO. HUUSUNFXOMJUDGE JORGE FIDEL DURON, DATED 24 AUGUST 1957 Tegucigalpa, D.C., August 24, 1957. Dear Dr. Hudson : The following are some of the ideas suggested by Dr. Ramon E. Cruz in con- nection with both the Application and Memorial on which youare now working. As time is running fast kindly examine his projected additions as follows: 1. A chapter should be added to the present Application advancing the expressed recognition of the rights of Honduras hy the Louisiana-Nicaragua Lumber Company in a concession which said American company obtained in Nicaragua in 1906 in which the territory of Honduras was alïected. We have records proving that said Company began its payments into the Honduran Treasury in 1911 until 1926. We are investigating whether said payments continued after 1926 as it may be tbat the concession lapsed or the company disappeared. We shall endeavor also to find out if any other company is in an analogous position. 2. Both in the Application and in the Memorial we should be careful not to say that the date of ratification of the Bonilla-Gamez Treaty was ratified on Ianuary 3, 1895,because such is the date of the approval of this instrument by the Nicaraguan Executive Power and it is no1 in fact the date of ratification by the Nicaraguan Congress. In this respectit is imponant to mention that the Nica- raguan Constitution in force in 1895was the 1893Constitution which entered into force on luly II, 1894. Ordinarily the Nicaraguan Congress convened on August I and it met in January only when a new president was sworn in. President Zelaya was in power inhis first terrn in 1895and the Constitution was amended on December 15, 1896,that was the lime when the bicameral system was adopted. 3. We believe and recommend thal your arguments about the jurisdiction of the Court should be maintained as stated in the Application and in the Memorial because, regardless of the Act of July 21, 1957,legally both States were subject to the competency of the Court and your sound arguments fortify Ourposition. You are right in saying that this Act takes care of the question of jurisdiction but we submit that your allegations be kept in both documents only to be reinforced hy the Act. We suppose that such Act signed by the Nicaraguan Foreign Minister and myself in Washington will be added as an Annex together with a brief statement to the elïect that hoth States agreed solemnly to submit the matter to the decision of the Court. We already have your fine translation of the Act. 4. A summarv narrative of the acts of the Oreanization of American States hcginning with hur firrt daim Jrni>uncing i\'ica&ua as ln Aggreswr should lippeÿr in the Memorilil. Ihr. narrdti\c uould siart with i~urtir\[ dcnunciaiion after the protest on account of the invasion and attack on Mocoron up to and including the Washington Act of July 21, 1957. Mention will be made of the creation of the Department of Gracias a Dios and following events. Dr. Cruz is now working on the Spanish text. 5. Finally, we are of the opinion, as agreed during Our conversations in Boston, that the Application as well as the Memorial, should include in the plea the nomination and designation of a Mixed Commission for the fixing of the landmarks in the section comprised between the Portillo de Teotecacinte and the EXHIBITS SUBMITI'EDBY NICARAGUA 305 confluence of the Poteca or Bodega river with the Guineo or Namasli river. As you well rememher, Our settlement plan with Nicaragua started thus, more recentlv we also aereed and now maintain such similar Mixed Commission to " renew or fixanew the landmarks from the Pacific to the Teotecacinte Pass and we helieve that we should ask the Court such a procedure as the most expedient wav for the execution of the Kine's Award. YOU-havealrcadv submitted ihe text of &ch a plea in the ~~~lication ............................ The appointments made by the Military Junta include Dr. Cruz as Agent and Doctors Julian Lopez Pineda and Celeo Davila as Honduran Counsellors. The first one is a lawyer, formerly our Delegate to the League of Nations, Minister in Paris and Managua. Dr. Davili did not accept the appointment. In addition to the above we have OurMinister Plenipotentiary in The Hague, Dr. Humber10 Lopez Villamil, former Delegate to the UN General Assemhly and as Secretaries young lawyers Robert Perdomo, now in Madrid, Roberto Reina, now in London and Enrique Ortez, now in Paris serving in Ourregular diplornatic missions. The picture is completed hy lawyer Roberto Palma Galvez, who willserve as General Secretdry when the Special Mission leaves and by you, Richard Young and Maurice Bourquin, in case he accepts. Othenuise we shall appoint Dr. Henri Rolin at your indication. Pleaselet mehave your reactions to the above points and, with kindest regards, helieve me, as ever, Your friend sincerely, (Signed) Jorge Fidel DURON. Tegucigalpa, Honduras, September 13, 1957. Dear Mr. Hudson : In view of the fact that your last letter from Geneva reported that you would leave on the 1lth for Cambridge, this letter and further ones will be addressed to you there. 1. With Dr. Cruz we have reviewed your last and recent suggestions. After carcful examination we have corne to the conclusion that for the best interest of Honduras we must include in the Memorial the matter connccted with the Louisiana-Nicaragua Lumher Company. We have pondered and decided that it is essential to do so because wc are thereby reaffirming the jurisdiction and sovereignty of Honduras up to the left bank of the Segovia river. The inclusion in writing, instead of orally, to the Court in the Memorial will serve as a precedent in the future noi only for our own present case but for any other that may present itself in the future. Please bear this in mind and kindly see that the reference is made expressly in the Memorial. 2. We also are coming hack to the matter of the Bonilla-Gamez treaty ratification. The only date we can prove with documentary evidence to this moment is the date of approval by the Nicaraguan executive on January 3, 1895, whileJoséSantos Zelaya was Prcsident and F. Vaca Foreign Minister. We should avoid mentioning the ratification date, by the Nicaraguan Congress - at'thattime a single Chamber - and rely on the date of the Exchange of Ratifications in San Salvador on December 24, 1896. Note that in my last letter to you, by mistake, October was copied instead of December, which is the exact month. 3. Dr. Cruz and 1want to insist that the Solemn Agreement of July 21, 1957, onlv reinforces and fortifies the areuments contained in vour Memonal to establish the jurisdiction of theCOU:. Both the ~~reement'si~ned by the two Foreign Ministers and the Agreements signed also with the OAS do not modifv in ani wav Our nosition excent reaffi&ine and recoenizine said iurisdiction. .lime and again Our l>clegaiion hcforc th; 0rgani7aiion nï ~me;ican Staic5 reiier~icd thai the IWO countries had subniitied IO the jurisdiciion oi ihe Inier- national Couri :and ihat Ilunduras withoui prior arrccmeni iciuld hrine Ki'iça- ragua into the Court to force her to comply'with hër international obligations. The Special Agreement was signed at the insistence of Dr. Luis Quintan- illa who stated that such a pact gave it more force in guaranteeing the exe- cution of the Court's decision bv virtue of the intervention of the Oreanization. Ilc evcn weni so Taras tu in,in&ie ihai uc could find dilliculties ai ihr. Seiurity Couniil in i,icwof possible puliiiral pressure and, u,iihoui meniioning. iniim~ied the vossibilitv of a~vetoeven. 4.. \Vc undcrsiood from ihc \ame Organiraiion or Amcrican Siates Amportol'said solution. however. depndb upoii curi,idcrïtions oIWO orders. ai once of lorm and of substance, thaiiiis .. 33. '~akin~ int,,a~,,un~ th, fund;inienlal divcrgcnsç of the tivd S~aicsuith rcrpectIO thc Auard of 1906and the iignilicant l'ailureof ihc procr.rlurcproposcd in 1931uhen the Priitiicol Irias-Çlloa ii.;issigned,one mu.1 exclude thc possibilit) that the Government of Honduras would &ree to submit the question of the validity of the referred Award to the International Court of Justice by means of an arbitration agreement. In this case the only way to bring thismatter to the Court would be a unilateral application. Still, in this respect there exists a dif- ficulty that should be indicated. With respect to Honduras, it is completely beyond doubt that this Government is bound hy the optional clause of compulsory jurisdiction. On May 24, 1954,il renewed the efïect of the declaration, signed previously by il, accepting the clause, in conformity with Article 36, paragraph 4, of the Statute of the Court. With respect to Nicaragua, the situation ismore complicated. The Government of Nicaragua accepted "unconditionslly" on September 24, 1929, the optional clause of compulsory jurisdiction ol the Statute of the Permanent Court of lnternational Justice although, on that date, it was not a party to the Statute of the Court. Ten vears later. that is on November 30. 1939.the Govcrnment of Nicaragua announced officiallyto the Officeof the permanent Court that it sent its two instruments of ratification, of the Statute as well as of the Protocol of acceptance of the outional clause. But, for reasons that have not been explained, this declaration of intention appears no1 10 have been followed with any effect, since neither of the indicated instruments of ratification arrived al the Officeof the Permanent Court neither on the indicated date nor afterwards. Thus the Yeurhook of the Permanent Court of lnternational Justice never indicated that Nicaragua figured on the list of States bound by Article 36, paragraph 2, of the Statute. Likewise, in bis work on The PermaneniCourt of InternationalJustice (French translation, Paris, 1936, p. 138, n. IIIin fine),Professor Manley O. Hudson expressly places Nicaragua among the States that had not ratified the Statute of the Permanent Court. According to the lems of Article 36, paragraph 5, of the Statute of the Inter- national Court of Justice, "Declarations made under Article 36 of the Statute of the Permanent Court of lnternational Justice and which are still in force are deemed, as hetwcen ihc Partics IO the prescnt Staiulc. to bc acfthe Inlernalional Cuurl of Justice for lhc period uhich thcy still haveIOrun and in accordance uith thcir tcrms." Taking in10 account the conditions in which Nicaragua signed the aforemen- tioned declaration of acceptance and the absence of transmittal of ils instrument EXHIBITS SUBMI~ED BY NICARAGUA 313 of ratification to the Secretary of the Permanent Court, it could appear that it does not figure among the States preseiitly hound by the optional clause of compulsoryjurisdiction. Still, theYearbook of the International Court of Justice, in the successiveeditions published since its creation (see, for exampleYearbook 1954-1955, p.35) ,xpressly placesNicaragua among the States whosedeclaration of acceptance of the compulsory jurisdiction of the Court is presently in force, "thesc Jcilïratiuns wcrc madç in accordancc with the iermç of the Staiuie of the Perniÿnent Court of Inicrnaiional Ju\iice, the remainder in .iccordance with the tcrms of the Staiuie or ihe In1ern;iiionalCourt of Justice". It is not possible, however, to give ansbsolute value 10 an indication of this nature taking into account that according Io the terms of reference that appear in the preface of each Yearbook, prepared by the Registrar himself, "The Year- book is prepared by the Registry, and in no way involvesthe responsibilityof the Court" (see, for example: Yearbook1954.1955, p. 7). In these circumstances. it is to be feared that in case Nicar-.ua oresented to the Court. hy means of unilateral appli;aiion. the probleni of the \;ilidiiy of the Award of Deccmber 23. 1906.Ilonduras could oppose uith prqudice thc queition ui the \,alidil) ui thc dc:laratiun or conipulsor) ~urisdict~onof the Internaiiondl Court of Jujtice, ,ince thii ~I~çlarrltionhm nul hcen arrumpanied by the Iran>- niittal oi the iiisiruiiicnt ER BUNDESREPUBLIC DliUTSCHLANDE , RCANZUNCSBANII, VERZEICHNIS UND STANUUbX VERTRAGE(AUCUST 1979),P.~600-41. 3. svonicosOVERENSKOMMBLSI~R MED FCMMANDE MAKTER (STOCKHOL1M 948), P.200. 4. TRACTATENRLAD VAN HET KONlNKRllK DER NI!I>ERLANDEN (1956),P45. MILITARY AND PARAMlLlTARY ACilVITIES Exhibit F 1was highly gratified, Mr. President, when 1walked iiito the Senate Chamber this afternoon, after having been called away on important business, to find that the Senate was considerine the resolution in executive session. In mv oninion that entirely removes any Gestion that may be raised in the future as Cowhether or not we have acted according to Our Constitutional lcgislative processes, and in mv. .inion if the resolutiin is now adooted bv a two-thirds maioritv in executive session, the question of the jurisdiction with which we vest the Inter- national Court of Justice cannot be questioned. That is why 1 took the posi- tion which 1did last night. 1gel some satisfaction out of the fact that the po- sition 1 took last evening on what was proper legislative procedure on this resolution may have had some influencein causingthe Senate to go into executive session for the consideration thereof. 1join with my colleague in exprcssing the hope that the resolution will be adopted. Mr. fIi//:obtained the floor. ,Mr. Vandenberg: Mr President - Mr. fIiil:1 understand the distinguished Senator from Michigan desires to ask a question of the Senator from Utah. 1yield to him for that purpose. Mr. Vandenberg:1 thank the Senator. 1cal1the attention of the Senator from Utah to the committee report at page 6, and 1want to ask for a clarification of the language in what purports to be the reply of Hon. Charles Fahy, legal adviser of the State Department; to the suggestions which were made by Mr. John Foster Dulles. 1 cal1 the Senator's attention to the fifth paragraph from the bottom of page 6, in which the legal adviser of the State Department is quoted as follows: "Jurisdiction should be compulsory only when al1 of the other parties to the dispute have previously accepted the compulsory jurisdiction of the court." Does that mean that it isthe attitude of the State Department that jurisdiction should be compulsory only when al1other parties to the dispute have previously auiepted the compulsory jurisdiction? Mr. Thomus of Utah: That is my theory of reciprocity, and that is in keeping, 1think, with the resolution itself. Mr. Vandenberg: Yet the resolution itself says that we accept compulsory jurisdiction "without specialagreement in relation to any other state accepting the same obligation". So 1 would think that the language of the resolution was directly contrary to the language of the recommendation by the StateDepartment. Mr. Thomas of Utah: The language of the legislalion is in keeping with the charter and with the scheme. Mr. Vundenberg : hat was not my question. My queslion is whether or not it is in keeping with the recommendation of the State Department. Mr. Thomas of Utah: 1think it is. 1think there is no inconsislency, as 1read the English language. For instance, article 36, dealing with the jurisdiction of the Court, provides : EXHIBITS SUBMIITED BY NICARAGUA 317 "1. The jurisdiction of the Court comprises al1 cases wliich the parties refer to it and al1matters soeciallvurovided for in the Charter of the United Nations or in treaties and Convekt;ons in force. 2. The States parties to the present Statute may at any time declare that they recognize as compulsory ipsfoacto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court in al1legal disputes concerning ..." And so forth. The same obligations of reciprocity, to my mind a1 least, 1will Say Io the Senator from Michigan, stand out clearly in that language, and there is no question in my mind either as to the meaning of the language of the Charter or the meaning of the resolution in this particular. Mr. Vandenberg:If the Senator will bear with me for a moment longer, 1will Say that 1think we are al1in agreement as to the objective we are seeking: but, of course, it is highly important that we should be sure we have reached the objective. Mr. Dulles, who certainly is one of the great friends of international jurisprudence, as the Senator knows, has raised a question whether the language of the resolution might not involve us in accepting jurisdiction in a multilateral dispute in which some one or more nations had not accepted jurisdiction. It is my understanding that it is the opinion of the Senator from Utah that if we con- fronted such a situation we would not be bound to submit to compulsory juns- diction in a multilateral case if al1 of the other nations involved in the multi- lateral situation had not themselves accepted compulsoryjurisdiction. 1sthat so? Mr. Tl~ornasof Utah: That is surely my understanding. I think reciprocity is complete. All the parties to the case mus1stand on exactly the same foundation, except that we may waive a right. Mr. Vandenberg:1 notice that the committee report, at the top of page 7, deÿls with this precise point. It says that MT.Dulles' objectionmight be met by another subsection in the first proviso of the resolution, on page2, after line 14, reading as follows: "(c) Disputes arising under a multilateral treaty, unless (1) al1parties to the treaty affected by the decision are also parties to the case before the court, or (2) the United States specially agrees to jurisdiction." As 1 understand the Senator from utah, he agrees with me that the situation defined in this suggested reservation is the situation which would exist without the reservation. Mr. Tl~omusof Utah: That is true: and since the Senator has used the word "reservation" 1 think that word is one that can well be avoided and dispensed with in the resolution, because the resolution is initiated by the Senate. It is not a part of an agreement with another nation. So that which the Senator kas called a reservation would be a simple amendment to the resolution. 1think it is better for us to realize that we are dealing from the beginning with this question, and if the Senator wishes to be doubly assured on a point with respect to which the Senator from Utah is already completely assured, 1see no objection to the addi- tion of: "(c) Disputes arising under a multilateral treaty, unless (1) al1parties to the treaty affected by the decision are also parties Io the case before the court, or (2) the United States specially agrees to jurisdiction." The only thing the Senator from Utah is constdntly thinking about is that it would be disastrous to the whole United Nations structure, after we have gone through the process of accepting the obligations of the United Nations and318 MILITARY AND PARAMILITARYACTIVIT~ making a treaty with other nations of the world to liveup to the United Nations structure, for the United States Senate to pass any measure which would in any way affect the structure of the United Nations. That is my stand. 1would guard against any such action. Mr. Vandenberg:1 quite agree with what the Senator from Utah has said regarding my inadvertent use of the word "reservation". Mr. Thomasof Utah: 1do no1want anything which we do here to he labeled as a reservation. Mr. Vandenberg:1quite agree with the Senator. That was merely a colloquial- ism so Faras 1was concerned. 1was thinking of the addition on page 2, after line 14,of the precise language suggested in the committee report itself namely: "(c) Disputes arising under a multilateral treaty unless (1) al1parties to the treaty affected hy the decision are also parties to the case before the court, or (2) the United States specially agrees to jurisdiction." It is my understanding that the able Senator from Utah would not object to the addition of that language in the pending resolution. 1agree with him that it would not be a reservation. Surely we have the original authority without jeopardizing our objective at all, to add a third definition under the proviso in the resolution. Mr Thomasof Utah: Personally, 1 would he willing to go even further than does the Senator from Michigan on this single point. Under subclause (2) 1 would he willing to Say,"The United States and other parties specially agree to jurisdiction".1 think that is exactly what reciprocity means. Mr. Vandenherg:Mr. President, will the Senator further yield? The Presiding Oficer Mr. Tennellin the chair: Does the Senator from Utah yield to the Senator from Michigan? Mr. Thomasof Utah: 1yield. Mr. Vandenherg: 1 agree with the Senator that that is what reciprocity medns. In view of my very great respect for the judicial opinions of Mr. John Foster Dulles in this area of jurisprudence, 1would be happier if we could spell it out, if the Senator agrees that that would be proper. At the appropriate lime I shall offer such an amendment, and I understand that it will he with the approval of the Senator from Utah. Mr. Morse: Mr. President, as the author of the resolution, 1 accept the suggestion of the Senator from Michigan. ADDITIONAL DOCUMENTS SUBMITTED BY NICARAGUA IN CONNECTION WITH THE ORAL PROCEDURE ON QUESTIONS OF JURISDICTION AND ADMISSIBILITY [Not reproduced] VERTRAG DER BUNDESREPUBD LIUTSCHLAN EDR,GANZUNGSBAV NDR,ZEICIINIS UND STAND DSR Vmrniic~, 1, HERANSGEGEVENAUSWARTIGA ENMT, CARL HEYMANN VSERLAGKG, BONNK , OLN,BERLIPP 41AND 44 [Nol reproduced] SvenicesOVERBNSKOMME MEDERRAMMANM DEAKTER 1,947,STOCKHOLM9,48, KUMGI.B. OKTRYCKERIP. A. MORSTED TSONER ,P.199-200 [Nor reproduced] TRACTATBNH LADHET KONINKRIJDER NI:DERI.ANDEJARGANG 1956NO.1, A. TITCL,OVSREENKOM STAKB UI~ OI>RICHTINVANEEN INTERNATIONAI.B COMMISS I:OR DE INTERNATIONAOPSPORINGSDIEN MET,BIJI.ACE;BONN,6 ]UNI1955,P45 [Nor reproduced]DOCUMIZN*fSSUBMITTED HYTllli UNITED STATES OF AMERICA IN CONNECTION WITI1 TI-IE ORAL PROCEDURE ON QUESTIONS OF JURISDICTION 1. 7SEPTEMBE 1984DRAFl"CONTADORA ACX FOR CE AND COOP~RATIO IN CENTRAL A~snicn (REVISEU)"U. NOI.TICIAI.NGLISHTRANSLATIO OP SPANISH ORIGINAL CONTAWRA ACT FOR PEACII AND COOPERATION IN CENTRAMIRICA (REVISID) Preamble The Governments of the Republics of Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua: 1. Aware of the urgent need to strengthen peace and cooperation among the peoples of the region through the observance of principles and measures that will permit greater understanding between the Central American govern- ments; 2. Concerned by the situation in Central America, which is characterized by a serious erosion of political trust, border incidcnts, the arms race, arms traf- ficking, the presence of foreignadvisers and foreign military presence in other forms, and the use by irregular forces of the territory of certain States for acti- vitiesaimed at destabilizing other States of the region; Convinced : 3. That the tensions and present conflicts could worsen and lead to a gcneralized large-scalewar; 4. That the goal of restoring peace and confidence inthe area can be achieved only through unconditional respect for the principles of international law, especially with regard to the right of peoples to choose, freely and without outside interference, the model of political, economic, and social organization best suited to their interests, through institutions that reprcsent the freely expressed will of the people; 5. That it is important to create. develop, and strengthen democratic systems in al1countries of the region; 6. That there is a need to create political conditions aimed at guaranteeing the security, integrity and sovereignty ofthe States of the region; 7. That genuine regional security can be achieved bymeans of agreements on security and disarmament; 8. That the national security interestsof the States of the region must be taken into account in the adoption of measures for halting the arms race; 9. That military superiority as a political objective of the countries of the DOCUMENTS SUBM~D BY THE UNITED STATES 321 region, the prcsenceof foreign advisers and other foreign elements,and trafficking in arms endanger regional secunty and contribute to the destabilization of the area ; 10. That agreements on regional security must be subject to an effectivesystem of verification and control; II. That destabilization of the governments of the area, reflected in general by the encouragement or support of activities of irregular groups or forces, acts of terrorism, subversion, or sabotage, and the use of the territory of a State for activities that affect the security of another State, violates the basic rules of international law and peaceful coexistence betweenStates; 12. That the establishment of limits on military development based on stability and security rieeds in the region is highly advisable; 13. That the creation of instruments in order Io implement a policy of détente mus1 be based on the existence of a political trust between States that will effectivelyreduce political and military tensions between them; 14. Recolling the definition of aggression by the United Nations, particularly in General Assembly resolution No. 3314 (XXIX), and as contained in the pertinent resolutions of the Organization of American States; 15. Takinginioaccounr the declaration on strengthening international security, adopted as resolution No. 2734(XXV) by the United NationsGeneral Assembly, as well as the corresponding and relevant legal instruments of the Inter- American system ; 16. ~rpromotc. in thoie zaic3uherï thc sociïty has bccn deepl) dividcd. actions Icïding to national reconc~liation that will .illoiv ihc people Io pariicipaic. under the law. in dcmocratic political proccqsc.;; Whereas: 17. Beginning with the United Nations Charter of 1945 and the Universal Declaration of Human Rights of 1948,various international organizations and conferences have drafted and adopted declarations, pacts, protocols, conventions and rules to efectively protect human rights in general and certain of those rights specifically; 18. Not al1the Central American countries have accepted al1existing human rights instruments, and it would be desirable for them to do so in order Io constitute a more complete human rights régimethat would result in the respect and guarantee of human, political, civil, economic, social, religious and cultural ri.,ts: IY In ni;iny cases. flÿacd and antiqu;itcd or in;idcquatï domcrtic Itiwsimpair thr validitv oi human righ-s as JïlincJ in dïclaraiion\ and ~>therinternational instruments : 20 hach Siatc musi concern iisclf uith modernizing and adapting ils laws sri that thcy will guaraniec the clTecti\cenloyment of hunisn righti: 21. One ol'thc miht elléctivrmrans <>l'esiabli~hinc tie vlilidiivof the h~man rights enshrined in international instruments and inthe constititions and laws of individual States is for the judicial power to have the authority and the autonomy it needs Io put an end to violations of those rights; 22. To that end, the absolute independence of the judicial branch mus1 be guaranteed; 23. Such guarantee will be obtained only if the judicial authorities enjoy sta- bilitv with resnect Io their res~onsibilities and the iudicial branch is financiallv stabie so that'its independenci from other branchésof government is absoluté and undisputed ;322 MILITARY AND PARAMILITARYACTIVITIES Convinced : 24. Of the need to estahlish just economic and social structures that will consolidate a genuine dernocratic system and allow their peoples full accessto the right to work, education, health and culture; 25. Of the high degree of interdependence among the countries of Central America and of the ootential olïered to small countries hv the Drocessof eco- nomic integration ; 26. That the magnitude of the economic and social crisis alïecting the region has demonstrated the need for changes in the economic and social structure that will reduce the dependency and fostër the regional self-sufficiencyofthe Central American countries, enahling them to reaffirm their own identity; 27. That the process of economic integration in Central Arnericais an elïective instrument of economicand socialdevelopment based on the principlesofjustice, solidarity and mutual advantage; 28. That there is a need to reactivate, improve and restructure the process of economic integration in Central America with the active participation of al1 States and institutions of the region; 29. That Central American institutions and authorities are called upon to assume~rimarvres~onsihilitvinmodifvingcurrent economicand socialstructures and stréngthe;ing ihe proce& of regiobaÏintegration; 30. Of the necd and the advisability of engaging in joint econornic and social development programs that willcontribute to the process of economicintegration in Central America as part of the development plans and pnorities adopted independently by those countries; 31. That investments are vital for the development and economic recovery of the Central American countries, which have coowrated with eachother to obtain financine for soecific.orioritv kroiects. and coisiderine the need to extend and u . . ,. , ~ ~ ~~ ~ " \trcngthen intcrnatiluti<)n 530, Cnitcd N;iiion\ Gcncral Arsenibly reso- luiidn 38/10, and OAS Cencral Asscmbly resolution AG,KES 675 (XIll-11/83), and 36. Preparedto irnplementfully the Document of Objectivesand the measures for carrying out the commitments made in ihat document, adopted hy their Ministers for Foreign Alïairs at Panama City, on 9 Septemher 1983,and 8 Janu- ary 1984, respectively, under the auspices of the Governments of Colomhia, Mexico, Panama and Venezuela, whichcomprise the Contadora Group, Have agreed as follows: DOCUMENTS SUB.UITTED BV THE UNITED STATES THE CONTADORA ACT FOR PEACE AND CWPERATION IN CENTRAL AMERICA PART 1.COMMITMENTS Chapter 1. General Commitments Single Section. Principles. The Parties undertake, in accordance with the obligations they have assumed under international law, to: 1. Respect the following principles: (a) renunciation of the threat or use of forceagainst the territorial integrity or political independence of States; (b) the peaceful settlement of disputes; (c) non-interference in the interna1aîTairsof other States; (d) cooperation of States in resolviiig international problems; (e) equal rights, freedetermination of peoplesand respect for human rights; If) sovereign equality and respect for sovereign rights; (g) refraining from discriminatory practices in economic relations between the States, respecting their systems of political, economic, and social organization ; (h) fulfillrnentin good faith of the obligations assumed in accordance with international law; 2. In application of these principles they will: (a) Ahstain from any action inconsistent with the objectivesand principles of the United Nations Charter and the Charter of the Organization of American States that impairs thc territorial integrity, political indepen- dence or unity of any of the States and particularly any such action that constitutes a threat or use of force. (b) Solvetheir disputes by peaceful means, by ohserving the basic principles of international law contained in the United Nations Charter and the Charter of the Organization of Ameriçan States. (c) Respect the existing international boundaries between States. (d) Abstain from military occupation of the territory of any of the other States in the region. (e) Abstain from any typc of military, political, economic or other coercive act intended 10subordinate to their own interest the exercise by other States of the rights inherent in their sovereignty. (f) Take the steps necessary to guarantee the inviolahility of their borders against irregular groups or forces seekingto destahilizethe governments of neighhoring States from within their own territories. (g) Refuse to permit their territories to he used to take action contrary ta the sovereign rights of other States and ensure that the prevailing conditions in their territories do not threaten international peace and security. (h) Respect the principle that no State or group of States has the right to intervene directly or indirectly, lhrough arms or any other form of interference, in theintemal or external aFairs of another State. (i) Respect the peoples' right to self-determination, without external in- tervention or coercion, hy avoiding the threat or direct or covert use of force to wcaken the national unity and territorial integrity of any other State.324 MILITARY AND PARAMILITARYACTIVITISS Chapter II. Commitments relating to Political Matters Secrion 1. Commiimenisrelaring ro a Reducrionof Regional Tensionand ihe Encourogemeno if Trust The Parties undertake to: 3. Encourage mutual tmst hy al1means at their disposal and avoid any action likely to threaten peace and security in the Central American area. 4. Ahstain from issuing or fostering propaganda in favor of violence or war as well as hostile propaganda against any Central American govemment, and comply with and disseminate the principles of peaceful coexistence and friendly cooperation. 5. To this end, their respective govemmental authorities shall: (a) Avoid any spoken or written declaration that may aggravate the existing situation of conflict in theea. (6) Urge the mass media to contribute to understanding and cooperation hetween the peoples of the region. (c) Encourage more contact and understanding hetween their peoples through cooperation in al1areas related to education, science,technol- ogy and culture. (d) Jointly consider future actions and mechanisms that will contribute to theattainment and improvement of a climate of stable and lasting peace. 6. Jointly seek a comprehensive regional solution that willeliminate the causes of tension in Central America and ensure the inalienable rights of the people in the face of foreign pressures and interests. Secrion2. Commirmenrsrelaring roNarionalReconciliaiion Each of the Parties willrecognize the commitment of each of the other Central Amencan States 10 its own people to guarantee the preservation of domestic peace as a contribution to the peace of the region, and to that end resolves to: 7. Take measures to estahlish and, if appropriate, improve representative pluralistic democratic systems that ensure effective participation by the people, politically organized, in the decision-making process and ensure that various opinion groups have free access to honest and periodic electoral processes, based upon full observance of the rights of citizens. 8. In those cases where deep divisions have occurred within the society, strongly encourage national reconciliation activities that allow fully guaranteed participation hy the people in authentic democratic political processes on the basis of justice, freedom and democracy, and, to this end, create mechanisms that will permit a dialogue with opposition groups, according to the law. 9. Issue and, if appropriate, ratify, expand, and improve laws and regulations that offer true amnesty and allow their citizens to hecome fully reincorporated in political, economic and social life. In like manner, guarantee the inviolahility of life, liberty and personal security for those who accept amnesty. Secrion3. Commirmenrsrelaring to HumanRighrs The Parties undertake, in accordance with their respectivedomestic laws and with the obligations they have assumed under international law, to: 10. Guarantee full respect for human rights and, to this end, comply with the DOCUMENTS SUBMITT~DBY THE UNITED STATES 325 obligations contained in international legal instruments and the constitutional provisions on the subject. II. Initiate their respectiveconstitutional procedures so that they may become parties Io the rollowing international instruments: (a) International Covenant on Economic, Socialand Cultural Rights, 1966. (6) International Covenant on Civil and Political Rights, 1966. (c) Optional Protocol to the International Covenant on Civil and Political Rights, 1966. (d) International Convention on the Elimination of Al1 Forms of Racial Discrimination, 1965. (e) Convention relating to the Status of Refugees, 1951. (jJOptional Protocol relating to the Statusof Refugees, 1967. (g) Convention on the Political Rights of Women, 1952.[1953] (h) Convention on the Elimination of All Forms of Discrimination Against Women, 1979. (i) Protocol Amending the Convention on the Abolition of Slavery, 1925. (j) Supplementary Convention on the Abolition of Slavery,the Slave Trade and Institutions and Practices Similar to Slavery, 1956. (k) International Covenant on the Civil and Political Rights of Women, 1953. (1) American Convention on Human Rights, 1969,taking note of ils Articles 45 and 62. 12. Draw up and submit the necessary legislation to their competent domes- tic bodies in order Io accelerate the process of modernizing and updating their legislation so that it may more effectivelypromote and ensure due respect for human rights. 13. Draw up and suhmit legislation to their competent domestic bodies in order ro : (a) Guarantee the stability of the judiciary so that ils members may act without political pressuresand themselvesguarantee the stability of lower- levelofficiais. (hl Guarantee ihc budgctary rt~bility of the judicial branch itwli ,u thai its independence lrom ihe other branchr, is absoluir and unqueriionable. Secrion 4. CommirmenrsrelaringroElecroralProcessesandParliamenrary Cooperalion Each of the Parties recognizes the commitment of each of the other Central American States to ils own people to guarantee the preservation of domestic peace as a contribution to the peace of the region, and to that end resolves to: 14. Take the appropriate measures to guarantee, under equal conditions, the participation of the political parties in the electoral processes, ensuring their access to the mass media and their freedom of assembly and speech. 15. They also undertake to: (a) Implemcnt the following measures: (1) Prumulgaic or amend elccioral Iaws su ihai eleçiions may be held ih~i guaranice cffcctivcpliriicipaiion b) ihc pe<>ple . . Esiablish inde~endeni elecioral bodies ihat will DrC. .C n reliable i,hall bc vrcvarcd in conll>rmiiy wiih the hasic definiiions and cri- teria contained in thé~nnex and Point 22-of this Section. Upon receipt of the inventories, the Commission shall conduct, within a period of 30 days at most, such technical studies as niay benecessary [O set the limilsof military development in the States of the region, taking into account their national security interests, and Io stop the arms race. Based on the above, the Parties agree upon the following stages of imple- mentation : First Staee: Once thev have s~hm~tted their resmctive inventories. the Parties shall refrain from acqu;ring any military equipment. This moratorium shall re- main in efiect until the limits referred to in the following stage have heen agreed upon. Second Stage: The Parties shall establish, within no more than 30 days, limits on the following types of weapons: combat aircraft and helicopters; tanks and armored vehicles; artillery; rockets and short-, medium-, and long-range guided missiles and launching means; ships, military vessels or vessels that could be used for military purposes. Third Stage: At the conclusion of the previous stage, the Parties shall estah- lish, within no more than 30 days, limits on military strength and on military installations that could be used in military actions. Fourth Stage: The Parties may open negotiations on those matters whose discussion theycunsider to be vital. Notwithstanding the above, the Parties may modify, by mutual agreement, the time periods estahlished for negotiations and the setting of limits. 22. The following basic criteria shall determine the levels of military strength of the Central American States, in accordance with the stability and security needs of the region : (u) No armed organization shall seek Io estahlish a hegemony over other individual armed forces. (6) The definition of national security shall take into account the level of economic and social develooment Ürevailinnat-a eive- time and the level that is sought. (c) Formulation of the definition should be based on comprehensive studies of the following points: (1) Perception of the interna1 and external security requirements of the State (2) Area (3) Population (4) Distribution of economic resources, infrastructure and population within the national territory328 MILITARY AhW PARAMILITARYACTIVITIES 15) Leneth and features of land and maritime houndaries ~- (6j ~atro of military expenditures 10the GDP (7) Ratio of military budget to government expenditures and comparison with other sociil indifators - (8) Grographic feiitures and siiuationi and gr<~polilii;ilconditions (Y) llighest levcl of miliiary teçhnology appropriate for the rcglon. 23. lnitiate the necessary constitutional procedures to sign and ratify or accede to international disarmament treaties and apreements, if thev have not alreadv done so. Secrion3. CommitmenisrelaringroForeignMilirary Bases 24. Refrain from authorizing the establishment of foreign military bases or military schools in their territories. 25. Close existing foreign military bases or training schools in their territones within six months of the signature of this Act. Section4. Cummitmenrs relating tu ForeignMilirary Adviser3 26. Suhmit to the Verification and Control Commission a report on foreign military advisers and other foreign elements participating in military and security activities in their territories within 60 days of the signature of this Act. The definitions contained in the Annex shall be taken into account in the preparation of the report. 27. Establish a schedule for the gradua1withdrawal of foreign military advisers and other foreien elements that would include the immediate withdrawal of military advisers located in operations and training areas. In estahlishing the schedule, the studies and recommendations of the Verificationand Control Com- mission shall be taken into account. 28. With respect to advisers performing technical duties relating to the instal- lation and maintenance of military equipment, a control lis1shall he established in conformity with the terms set forth in their contracts or agreements. The Verification and Control Commission shall use the control list for the purpose of setting reasonahle limits on the number of such advisers. Section 5.CommiimentsrelaringroArmsTrafic 29. Eliminate internal and external regional arms traffic supplying arms to persons, organizations, irregular forces or armed groups attempting to destahilize the governments of the Parties. 30. To that end, establish internal control mechanisms at airports, on land, air, sea and river routes, and at any other points or areas likely to be used for arms traffic. 31. Ktport prcsumcd or proien arins iraIli<\iolatidns IO lhc \'crificiition and Control Curnmirsion, pro\.iJing thc Comrnis,ion witli sutlicicnt inforrna~loiIO enable it to conduct the necessary investigations and to present such findings and recommendations as it may consider appropnate. When applicable, the fol- lowing criteria shall beused, interalia, for verification purposes: (a) origin of the arms traffic; (b) personnel involved; (c) type of armaments, ammunition, equipment or other categories of mili- tary supplies ; DOCUMENTSSUBMI'II'EDBY THE UNITED STATES 329 (d) extraregional means of transportation; (e) extraregional transportation routes; (f) storage facilities for weapons, ammunition, equipment and other types of military supplies; (g) intraregional trafic areas and routes; (h) international means of transportation; (i) receiving unit. Seclion 6.Commitments relatingtu the Prohibitionof Supporlfor lrregularForces 32. Reir.iin iiom lenrlingan) pi>liiical.miliiary. financial or oihcr support to indii~iilu;ils.groups, irrcg~lar forces or drntcd groups .id\<)csiing ihe <>ihcrthrini or dcsiabilir.ition ~I'othcr a,i.rrnmcnts. anJ 10 nre\cnt. usinr!a11mcanr xi ihcir disposal, the use of their t&ritory for attacks on or for orgazizing attacks, acts of sabotage, kidnappings, or criminal acts in the territory of another State. 33. Maintain strict vigilance along their borders to prevent their territory from being used for armed activities against a neighboring State. 34. Disarm and remove from border zones any group or irregular force iden- tified as being responsible for acts against a neighboring State. 35. Dismantle and deny the use of logistical and operational support instal- lations and facilities in their territories used Io launch activities against neighbor- ing governments. Secrion 7 Comnlirmenrs relaring 10Terrorism,Subversion or Sabotage 36. Refrain from lending political, military, financial or other support to sub- versive, terrorist or sabotage activities attempting to destabilize the governments of the region. 37. Refrain from organizing or urging participation in acts of lerrorism, sub- version or sabotage in another State or from permitting activities to be organi- zed within their territories for the purpose of comrnitting such acts. 38. Observe the following international treaties and agreements: (a) The Hague Convention for the Suppression of Unlawful Seizure of Aircrafi (hl Convcniion lu Prcvrnl and Punirh ihc Acis <>f'l'crrorism taking thc Form of Crimcs ,\gainsi t'crsons.and Kclatcd lixtoriion thai ;ireof Intcrnliti~inal Significance. (c) Convention for the Suppression of Unlawful Acts Against [the Safety of] Civil Aviation. iI Convcntioii on the, Prc\,eiiii<~nand Puni>hrnent oi Crime, .4g.iinst Intcrnationally Protc:ted t'crions. including Uiploniatic r\geiiis. (<,,Iniernaiional Cunvcntion ,\g.iinst the Taking of Hoiiagcs. 39. Initiate, if they have not already done so,constitutional procedures to sign and ratifv or accede to the international treaties and aereements referred to in the preciding paragraph. 40. Respect the commitments enunciated in this section without prejudice to the execution of other treaties and international arr-ements on diplomatic and territorial asylum. 41. Prevent participation in criminal acts within their respective territories by persons belonging to foreign terrorist groups or organizations. To that end they shall strengthen cooperation arnong immigration and police authorities as well as arnong the appropriate civilian authorities.330 MILITARYAND PARAMlLlTARYACTfVlTlES Seciion8. CommifmenlsrelatingfoDirecfCommunicfionSysfems 42. With a view to preventing incidents, establish a regional communications systemensuring immediate and timely contact between competent governmental 'nd military aüthorities. 43. Establishjoint securitycommissionsin order to prevent or resolveconflicts between neighboring States. Chapter IV. Commitments on Economic and Social Matters Section 1. Commitmentsin the Economicand Social Fields In order to strengthen the process of Central American economic integration and the institutions comprising and supporting it, the Parties agree Io: 44. Reactivate, improve and restructure the process of Central American economic integration, bringing it into barmony with the various forms of poli- tical, economic and social organization of the countries of the area. 45. Ratify resolution No. 1/84ofthe Thirtieth Meetingof Ministers responsible for Central American integration of July 27, 1984,directed towards the insti- tutional reestahlishment of the process of Central American integration. 46. Support and encourage the adoption of agreements for strengthening intra-Central American trade within the legal framework and in the spirit of integration. 47. Not to adopt or support coercive or discriminatory measures harmful to the economy of any Central American country. 48. Adopt measures for strengthening the financial organizations of the area, including the Central American Bank for Economic Integration, supporting its elforts to obtain resources and to diversify its operations, and preserving the decision-makinr Dowerand the interests of al1Central American countries. 49. ~trsn~th;n' the niultilatcral payment mechanimh uiihin the Central Amcricdn Commun Markci [;und. and ~C~CI~L~IC thosc mrvhaniimi th21oprats throu~h the Central American Clearing Iluusc. Avail~blcinternalional financi31 assistance may be requested in supporiof these objectives. 50. Undertake sectoral cooperative projects in the area, such as the electrical energy production and distribution system, the regional food security system, the plan of priority health needs of Central America and Panama and others that would contribute to Central American economic integration. 51. Jointly examine the prohlem of Central American foreign debt on the hasis of an evaluation that takes into account the interna1 situation of each country, its ability to pay, the critical economic situation in the area, and the flow of additional resources needed to further its economic and social development. 52. Support the process of developing and subsequently implementing a new Central-American tarilf and customs régime. 53. Adopt joint measures to protect and promote their exports, integrating the processing, marketing and transportation of their products in so far as 54. Adoptthe necessarymeasures to accord juridicdl personality to the Central American Monetary Council. 55. Support at the highest level the efforts by CADESCA, jointly and in co- ordination with suhreeuonal bodies. to obtain from the international communitv the financial resources necessary for Central America'seconomic reactivation. 56. With the cooperation of the ILO,apply international lahor standards and DOCUMENTS SUBMIïTED BYTHE UNITU> STATES 331 conform their domestic legislation thercto, particularly in those areas which contribute to the reconstruction of Central American Societies and economics. Likewise,with ILO'scooperation, implenient programs for creation of newjobs, training of workers and useof ap~ ~pr~ate technologies aimedat better utilization of the labor force and natural resources of each country. 57. Request the Pan American Health Organization and UNICEF, as well as other development agenciesand the international financialcommunity to support the financing of the "Plan of Priority tlealth Needs of Central America and Panama" approved by the Ministers of Health of the Central Amencan lsthmus meeting in San José,on March 16, 1984. Seclion2. Commirmenrs onRefigeeMalfers The Parties agree to make the necessary efforts to: 58. If they have not already done so, follow the constitutional procedures for accedingto the 1951Convention on the Status of Refugeesand the 1967Protocol on the tat tuof Refugees. 59. Adopt the terminologyestablished in the Convention and Protocol referred to in the preceding paragraph in order to differentiate between refugees and other categories of emigrants. 60. Establish the necessary interna1 mcchanisms for implementing the provi- sions of the Convention and Protocol referred to in paragraph 58, when acces- sion takes placc. 61. That consultative machinery he established between Central American couniries and representatives of the government officesin charge of the refugee prohlem in each State. 62. Support the work of the United Nations High Commissionerfor Refugees in Central America. and establish direct means of coordination in order to faci- litate its efforts to carry out its mandate. 63. That any repatriation of refugees be voluntary, on the basis of expressed individual wishes, and undertÿken with the cooperation of the UNHCR. 64. That tripartite commissions composed of representatives of the sending State, the receivingState and the UNHCR be set up in order to facilitate repatri- ation of refugees. 65. Strengthen programs of assistance and protection for refugees, especially in the fieldsof health, education, employment and security. 66. That programs and projects be set up with a view Io permitting the refugees to achieve self-suficiency. 67. That the UNHCR or other international agencies be asked to help to train oficials in each country responsible for providing protection and assistance Io refugees. 68. That the international community he asked Io provide immediate assistance to Central American refugees, hoth directly, through bilateral or multilateral agreements and througb the UNHCR and other agencies. 69. With the assistance of the UNHCR,'identify other possible receiving countries for Central American refugees. lnno case shall a refugee betransferred to a third country against his will. 70. That the governments of the area make the necessary efforts Io eradicate the causes of the refugeeproblem. 71. That once the bases for voluntary or individual repatriation have been agreed, with fullguarantees for the refugees,the receivingcountries allow oficial332 MILITARY A~W PARAMILITARY ACTIVITES delegations from the sending countrics, accompanied hy representatives of the UNHCR and the receiving country, to visit the refugee camps. 72. That receiving countries, in coordination with the UNHCR, facilitate the arrangements for the exit of refugees in cases of voluntary and individual reoatriation. 73. Establish control measures in countries granting refuge in order Io prevent refugees from participating in activities against the sending country, always with due respect for the human rights of refugees PART II. COMMITMENTS RELATING TO IMPLEMENTATION The Parties shall estahlish the following mechanisms for the implementation of the commitments contained in this Act : 1. Comiread hocpara la E~~aluacioyn el Seguimienrode losCompromisosen Mareria Poliricuy de Refugiados[Ad Iloc Committee for the Evaluation and lmplementation of Commitments in Political and Refugee Matters]. (a) Memhership The Committee shall becomposed of five(5) prominent persons of recognized competence and impartiality, nominatcd by the States members of the Contadora Group and approved by the Parties by mutual agreement. The members of the Committee shall be nationals of States other than the Parties. The Committee shall receiveand evaluate the reports that the Parties undertake to furnish concerning the manner in which they have proceeded to implement their commitments in the area of national reconciliation, human rights and the electoral and refugee process. - Moreover, the Committee shall be open to papers on these topics sent to it for information by organizations or individuals, which may contribute useful information io the evaluation. - Using the preceding information, the Committee shall periodically prepare a reoort which. in addition to contaiiiin~ the evaluation. shall inçlude ~ro~osals an'd recommkndations for improved-implementatio" of the comkitkents. This report shall be sent to the Parties and to the governments of the Con- (c) Bylaws The Committee shall draw up its own bylaws and shall inform the Parties of them. 2. Verification and Control Commission on Security Matters. (a) Memhership The Commission shall he composed of the following: - Four commissioners representing States recognized to be impartial and to have a genuine interest in contributing to the solution of the Central American crisis. They shall be nominated by the Contadora Group and approved by the Parties entitled to speak and to vote on the decisions of the Commission. Coordination of the work of the Commission shall be rotated. DOCUMENTS SUBMITiED BY THE UNITED STATES 333 - A Latin Amencan Executive Secretary appointed by the Contadora Group in agreement with the Parties entitled to speak and lo vote on the decisions of the Commission. The Executive Secretary shall be responsible for the permanent operation of the Commission. - A representative of the United Nations Secretary-General and a representative of the OAS Secretary General, acting as observers. (hl Establishment The Commission shall be established at the latest within thirty (30) days from the signature of this Act. (cl Duties - Receive the current arms, installations and manpower inventories from the Parties, prepared in accordance with the provisions of the Annex. - Conduct technical studies to be used in establishing maximum military strength limits for the Parties of the region in accordance with the basic criteria established in Commitment 22 of this Act. - Verifythat no new arms are introduced tbat may qualitatively or quantitatively change present inventories and that no weapons banned by this Act are utilized. - Establish a register of al1 commercial transfers of arms by the Parties, including donationsand other transactions arranged under military assistance agreements witb other governments. - Verify the dismantling of foreign military installations as established in this Act. - Receive the roster of foreign military advisers and verify their withdrawal according to the agreed timetable. - Verify cornpliance with this Act concerning trafficking in arms and examine ony reports of violations. To this end the following criteria should be considered : (1) Origin of the trafficking in arms: This concept includes the port or airport of embarkation of the arms, munitions, equipment and other categories of military supplies intended for the Central Amencan region. (2) Persons involved: Persons, groups or organizations that have parïicipated in the coordination and the commission of traficking in arms, including parti- cipation by the government or its representatives. (3) Type of arms, munitions, equipment and other categories of military supplies: Under this heading indicate the type of arms, caliher and country of manufacture, if the country of origin is no1 the same as the country of manufacture, and the numher of each type of arms, munitions, equipment and other categories of military supplies. (4) Means of transportation outside the region: Note the means of transpor- talion by land, sea or air, including nationality. (5) Extraregional transportation routes :lndicatewhat trafic routes wcre used before reaching Central American terntory, including pons of cal1or intermediate destinations. (6) Bases for stonng arms, munitions, equipment and other types of military supplies. (. .Intrareeuonal trafic areas and routes: Describe the areas and routes and the participation or consent of the government or governmental and political sectors in arms trafficking. State how frequently there areas and routes are used.334 MILITARY AND PARAMILITARY ACTlVlTlES (8) International means of transportation: lndicate the means of transpor- tation used. their owners and the facilities orovided hv the aovernment or government'aland political sectors, specifyingwhether théyinclide clandestine iiights to unload military equipment, dropping packages with parachutes, and usinp.small launches loaded with su~dies on the high seas. (9j Recipient(s): Determine the &sons, groups-and organizations who are the recipients of the arms traffic: - Verify compliance with this Act concerning irregular forces and non use of their own territories for destahilizing activities against any other State and examine any reports of violations. - Verifycompliance with the notification procedures for national or joint mili- tary maneuvers stipulated in this Act. (d) Rules and Procedures - The Commi\\ion shall receiic any report of \iulatiiins of ihr cornmitmeni\ rclating to ic~urity unJrrt:ikcn in this Aii. pruvidcd thai IIir duly foundcd. II shxll inforni the Parriei involvcd <~i'thcreport aiid shah iniiiatc rvh;iie\er investigations it deems appropriate,. - The Commission shall conduct ils investigations through onsite inspection, compiling evidence, and any other procedure it considers necessary for the oerformance of its functions. - In the event of a report of violation or nonfulfillment of the commitments of this Act relating to security, the Commission shall prepare a report containing recommendations for the Parties involved. - The Commission shall send al1ils reoorts to the Central American Ministers of Foreign Relations. - The Commission shall have access Io al1the facilities and receive the prompt and fullcooperation of the Parties in the proper performance of ils functions. It shall also ensure the confidentiality of any information collected or received during ils investigations. (e) Rylaws Once established, the Commission shall draw up its own bylaws and shall inform the Parties of them. 3. Comiread hocpara la Evaluuciony el Seguimienrode losCompromisos en Maieria Economicay Social[Ad Ifoc Committee for the Evaluation and Imple- mentation of Commitments in Economic and Social Atfairs] (a) Membership - For the purposes of this Act, the meeting of ministers responsible for Central American economic integration shall constitute the Ad Hoc Committec for the Evaluation and Implementation of Commitments in Economic and Social Aiïairs. (b) Functions - The Committee shall receive the reports by the Parties concerning their progress in complying with the economic and social commitments. - Conduct oeriodic evaluation of advances in com~liance with economic and social commitments, relying on the information fimished by the Parties and the competent international and regional organizations. DOCUMliNTS SUBMlITEU BY THE UNITED STATES 335 - The Committee shall mesent nrono. .s in its periodic reports to strengthen . rcgional coopcratii>nand priimote de\,clopment plans. with pirticular empha- sis on the aspects ind~iaicd in the commitments <~l'thisAct. PART III. FINAL PROVISIONS 1. The commitments undertaken by the Parties,in this Act shall be legal in nature and, therefore, binding. 2. This Act shall be ratified in conformity with the constitutional procedures established in each of the Central American States. The instruments of ratification shall be de~osited with the governments of the States which compose the Con- tadorÿ Group. 3. This Act shall enter into force when the five Central American signatory States have deposited their instruments of ratification. 4. The Pa~ti~~~ ~f.~r the date o~ -~-~~~~~~~ shall abstain from acts desia-ed Io frustrate the purpose of this Act. 5. The mechanisms referred to in Part II shall becomeprovisionally operational 30davs after the date ofsienature ~f thi~ Act. The Parties shall take the necessaw steps&fore the end of th2 period to ensure the aforesaid provisional operation. 6. Any dispute regarding the interpretrtion or application of this Act that cannot be resolvedthrough the mechanisms provided in Part II shall besubmitted to the Ministers for Foreign Relations of the Parties ror their consideration and decision; the affirmative vote of al1Parties shall be required for a decision. 7. In the event that the dispute persists, it shall be submitted to the Contadora Group Foreign Ministers, who shall meet at the request of any of the Parties. 8. The Ministers for Foreign Relations of the States composing the Contadora Group shall use their good officesso that the Parties concerned may resolve the specific situation submitted for their consideration. If that recourse rails, they may suggest another peaceful means of resolving the dispute in conformity with Article 33 of the United Nations Charter and Article 24 of the Charter of the Organization of American States. 9. There shall be no resewations to this Act. 10. This Act shall be registered by the Parties with the Secretary-General of the United Nations and the Secretdry General of the Organization of Ameri- can States in conformity with Article 102 of the United Nations Charter and Article 118of the Charter of the Organization of American States. Done in the Spanish language, in 9 originals, in the city of on , 1984. Annex The Parties agree on the following definitions of military terms: 1. Registry: Numerical or graphic data of military, paramilitary and security forces and military installations. 2. Inventorv: Detailed lis1of weanons and militan, eauinment. of national or foreign ownership, including as maiy specifications as possible. 3. Census: Numbers of foreign military or civilian personnel assignedas advi- sers on defense and/or security.336 MILITARY AND PARAMILITARY ACTIVITIFS 4. Military installation: Facility or infrastructure that includes airports, bar- racks. forts, camos. air or naval facilities or similar facilities under militas. jurisdiciion, includi"g thcir gcographicdl location. 5 Orgau~~n~n 2nd squipiiicni plriri. Documeni showing ihe riiissio~i.orgdiii- laiion. equiprncni. cliwarity 2nd Iimitliti<~ni<>i LI t)plc31 rnillt~r) unit ai II, ... ~ ~ various l&eis. 6. Military equipment: Matériel, individually or assembled, of national or foreign ownership, used by a military force in its day-to-day activities and operations, excludingweapons. 7. Classification of weapons: (a) By their nature : 1. Conventional 2. Chemical 3. Biological 4. Radiological (bl Bv their ranpe: artillery) 3. Long-range: Rockets and guided missiles, classified inturn as: (a) Short-range rockets: maximum range of less than twenty (20) kilo- meters (bj Long-range rockets: range of twenty or more kilometers (c) Short-range guided missile: maximum range up to one hundred (100) kiloheters (d) Medium-range guided missile: range hetween one hundred (100) to less than five hundred (500) kilometers (c) By their caliher and weight: 1. Ligbt: 120mm or less 2. Medium: more than 120 mm and less than 160mm 3. Heavy :more than 160mm and less than 210mm 4. Very heavy: more than 210mm (d) By their trajectory : 1. Straight-line fire weapons 2. Cumed or arced line of fire (a) mortars (b) howitzers (c) cannon (d) rockets (e) By their means of transport : 1. hand-carried 2. horse-drawn 3. towed or on threads 4. self-propelled 5. al1weapons may be transported by road, railroad, sea or air 6. transportation hy air is classifiedas: (aj by helicopter (bj by plane. DOCUhENTS SUBMIITED BY THE UNITED STATES 337 8. Characteristics Io be considered regarding the vanous types of planes and helicopters : (a) Model (h) Quantity (c) Crew (d) Manufacture or make (e) Speed (f) Capacity (g) Propelling system (h) Armed or not (i) Type of armament (j) Radius of action (k) Navigation system (1) Communications system (m) Type of mission it accomplishes. 9. Characteristics to he considered regarding various ships or hoats: (a) Type of ship (b) Shipyard and year built (c) Tonnage (d) Displacement capacity (e) Draft (fi Leneth (g) roie el slsne^ (h) Type of armament and firing sistem (i)Crew. 10. Services: Organizations providing general support, logistical and adminis- trative support to military, paramilitary and security forces. 11. Military training centers: Facilities used for the training and preparation of military personnel at their various levelsand specialties. 12. Military base: land, sea and air space whichincludes military installations, personnel and equipment under military command. The definition of a foreign military base must take into account the following factors: - Administration and control - Sources of financing - Ratio of local to foreign personnel - Bilateral agreements - Location and geographical area - Leasing or ceding of territory to another State - Number of military personnel. 13. Forei-n militarv installations: Facilitiesbuilt for the oumose of beine used hy foreign units for maneuvers, training or other milita4 objectives acc&ding to bilateral conventions or agreements. These facilities may be temporary or Dermanent 14. Foreign military advisers: Military and security advisers are understood to include military or civilian foreign personnel on technical training or advisory missions in the following areas of operations: tactical, logistics, straiegy, organi- zation and securitv with land. sea and air forces or securitv forces in the Central Amrrican Sta1i.iu'ndcragrccnienis subscribcd io by one oftarinand re~llirnicd ihcir willingncss i<> wpport this through the iurihcr dç\cliiprnent of rclaiioni between the two regions. In this connection, the Ministers looked forward to the accession of Portugal and Spain to the European Community and welcomed the contribution which they willmake to the further strengthening of cooperation betweenthe two regions. 12. The European Ministers and those of the Central American lsthmus declared themselves satisfied withthe results already produced hy their relations and agreed on the need to broaden and deepen these relations. They concentrated more particularly on the areas in which cooperation with the European Community has proved useful for the economic development of the group of Central American countries and where mutual cooperation should he streng- thened (specificdevelopment projects, particularly agricultural and rural projects with a regional hasis, regional integralion, trade promotion and generalized preferences). 13. The European and Central American Ministers, in looking ahead to the future, in the perspective of the development of mutual cooperation, recognized the existence of solid ground for cooperation activities, on the basis of equity, respect and mutual benefit, notably along the lines of the following paragraphs. 14. The Community and the group of Central American countries recognized the need to develop, extend and diversify their mutual trade to the fullest possible extent. In this connection the Ministers considered that the generalized system of preferencescould be an appropriate means 10encourage the growth of foreign DOCUMENTS SUBMITiED BY THE UNITED STATES 343 trade and industrialization of the countries concerned. They agreed that the use of the system should be simplified and its benefits be extended. The Community reamrmed the importance it attaches to the fundamental ohiectives of the generalized vreferences srstem and announced ils intention, w&re the develop&ent and théapplication of the system is concerned, of taking into account the interest that will be shown hy the Central American countries. 15. Taking account of the importance of economic development for the coun- tries of the Central American region, the Community will do cverything pos- sible, within the context of its present and future programmes in support of towards the development of the region. These actions developing countries, should he identified bv common agreement. based on the oriorities and obiectives of the region and should bc mulGateral in character. ~he Community déclared itself willing to exploit to the full the institutional infrastmcture existing in the region. In addition to aid given on a hilateral basis by Member States of the Com- munity to the countries of the region, the Community will provide technical and financial assistance to Central Amenca, in particular for agricultural, agro- industrial and rural projects. With the aim of promoting regional economic inte- gration and the development of intra-regional trade, itis the intention of the Community to give priority assistance to projects of a regional nature and to help the countries of Central America and their regional institutions through sharing with them the Community's specific experience acquired in matters of integration. For its part, the group of Central American countries declared itself ready to present specificprojects in priority fields, whichtake into account inter uliusocial welfare aspects. By way of illustration, mention was made, with regard to projects, of the demands which were presented jointly hy the countries of Central America 10 the~~nt~ ~ational financial communi~ ~in~Brusselsin Seotember 1983. ~ ~ ~ Thc Ccntr~l ,\nieriran Mini\ters Cniphnsi?cd ihe impiirlancc thcy aitach in the rcactivattoxiof production and plirticul~rlyof the priduition of goods tradcd within the Central ~merican lsthmus. For the vurooG of the latter. financial SUD- port is rcquired for the countries of the centrai American lsthmus, preferabiy through the Banco Centroamericano de lntegracion Economica (CABEI), so that the support will contribute to the reactivation of the industrial and agn- cultural sectors of the reeion. It is the intention of the Community and of its Member States to give priority to the develovment of their assistance to regionally-oriented vroiects and to those of a sochl nature such as health programmes and those intended to relieve the situation of those who for one reason or another have been compelled to abandon their traditional homes. 16. The Ministers on the two sides considered that economic cooperation renresented an area of interest for future relations between the Communitv and thé group of Central American countries. In this context, they rneniioned specificallythe promotion of business contacts hetween the two regional group- in-s. coowration between vublic and rivat tenational financine -nstruments in the tw<>regiuns. a, wcll as icicniific. tcchntcal and basic training. cspeiially in rcsnirch iields. The Community Minisicrs look note of the possihiliiy ofcrcd b) ihc CAHEl Hoard of Govcrnors IO open 11,mcmhrrship Io countries outside th? reeion. In view of the imoortant role assumed bv f&eien investments in the economic de\clirpment of ~entr.il ,Imcrican couniAc\. ihe~inistcrs agrecd ihat ihc prom,~tion aiid protection of I-uroprÿn invcrtments in Central Amerira drr Intheir mutual inicrest. In ihis~onnccti<~nt,he).\trcsred the need for an impro\,cJ344 MILITARY AND PARAMlLlTARY ACTIVITIES climate for investments in the region hy appropriate measures of encouraging private investments. 17. The Ministers of the Euro~ean Communitv and those of Central Amenca acknowledged the interest in streigthening and &ing institutional fom to their mutual relations. Acknowledgingthe importance of strengthening relations, they declared themwlves readv to start discussions as soon as oossib~ewiih a view to negotiaiing an inier-regional framcwork cooperaiion agr~cmeni.On the Corn- muniiy side. the agrwmçni would br negoiiated in accurdance wiih ils cstab- Iished ~roccdurcs. Both sidcs considercd thai the conclusion of an aarecrncnt of this type would confitm the political will of both regions to extend and develop their relations and that it would also help to reinforce relations between the Community and Latin America as a whole. 18. The Central American Ministers ex~ressed the view that the ao..o~r.ate intergo\,ernmeni~liurum ior apprubing the rnnin lincs of a r~.gion~lpihitiirn as a nirrhantsril for ncgutiaiiun ancili~llow-upin the e;unciI.wiih the pdriicipaiion of a rc~rcscntativcIrom the Governrnent of Panama. The negotiating body, under the aegis of the Central American Economic Council, will he an adhoc group composed of delegates from every govemment. This body will act in coordination with the group of heads of mission of the countries of the Central American lsthmus (GRUCA), with headquarters in Brussels.The SlECA will support the mechanism for negotiation and iollow-up and will seek the collaboration of other institutions connected witb Central American integration and other regional and international bodies in accordance with the circumstances. 19. The Ministers expressed their conviction that this meeting constitutes a first step in a process which will effectivelyincrease existingcooperatiori hetween Central America and Europe. DOCUMENTS SUBMITTEDBYTHE UNITED STATES 3. "EXPOSICIODEL SENOR MINISTR OERELACIONE ESTERIOR ELSHONORABLE CONGRESN OACIONA LIDIENDO LA APROBACION DLA CARTA DE LASNACIONES UNIDAS EL ESTATUT DE LACORTE INTERNACION DELJUSTICIY LOSACUERDOS ~OVIS~ONALESCONCERTAD POS LOSGOBIERND PARTICIPANT ENSLACONFER- OFJUSTICEA,ND THE PROVISIONAGREEMENC TOSNCLUDE BK THEGOVERNMENTS PARTICIPATININGTHE UNITED NATIONCSONIBRENC ON INTERNATIONO ALCA- NIZATION"(MANAGUA 2, JULY1945)INREPUBLIC OF NICARAGUA M,EMORIAL PRESENTED 70 THNATIONAC LONGRE SY THESECREZARYOFSTATEIN THEOFFICE OFF~RE~GNRELAT~~ 194~, (ENGLISTMNSLATIO OF PAGE139-142~OVIDED) [Spanish tex1not reproduced] DEPARTMENT OFSTATEDIVISIOOF LANGUAGE SERVICES (Translation) LS No. 113935 WDIMM RFPL'RLIC01: NICAKAGL'A SlLMC)KI,\L PKESFVI El>.IO Ttll< NATION,\L CONGRCSS BY TIII: SLCKt l'Al\,through you Ihr.Secretartr.ï oi ihsr hn.:Charter. thc Statute oi the Inicrnaiionnl C'ourr oi Juslice which is aniiched io ilie fornicr as .in inicgra- panilthcrei~f ihc Prii\i,ionclano Kooscvcli and the greai siaiesmen Win- stim Churchill and Joseph Stalin, and in the addiiional Yalta agreements. Ituas hr from casy IOarrive ai an agreement amid\t the muliiiudc of opinions and intcrests encountered. Much good will was required to hammer out the understanding that was reached, as was the firm conviction that peace is the greatest good and any sacrificemade to keep it is worthwhile. The fact that a formula reconciling al1 interests and opinions was achieved should strengthen OUI confidence that al1 differences can be resolved and al1 coniiicts settled. We ought to ourture that conviction because it inspires the certainty that where there is a will to prevent war there is always a way. The orevaration of the United Nations Charter involved the oarticioation of rcpresentaii\,es of $0natlonï. ofdiircreni races, iangwges. re~i~io'nasnd'cu~iurçs. united by ihcir dcicrminaiiun iu lind s mçans of puiiing an end io mars. The Charter is not a perfect instmment, as no human endeavor can he perfect. What nohody will deny is that it represents a step forward and a considerable advance towards the bettement of humanity and acknowledgement of the fun- damental rights of men and nations. As President Truman said in his speech at the closing session of the San Francisco Conference, it is a solid structure on which to build a hetter world. Nor can the Charter he considered capable, as a single isolated document, of hringing forth conciliation and harmony among nations. In my remarks to the Conference 1called for an instrument desi-ned to thwart a-eression and eliminate jusiiiicaiion for wdr through the collaboraiion of nations. No\&us have thai instrument, bu1the coll~borniion oi nalions will aluays hc.nnrrcsrary. The same unity, the same firm purpose, the samefaith in pea& as the hest climate for understanding among peoples, are and will remain indispensable to maintain international harmony and the well-heing of humanity. The eloquent French statesman Paul Boncour made the memorable comment at one point in the Conference that oeace "deoends on tme unitv of.oumo.. amone the l-ree and smdll counirics. In thi, huur ollmmcnse hop' fillingour hearts. let ur suear to kecp odr Tdiihin pe:ice. in the unit) thai \\,as iiur sirength during the "ar ,\lih<>uzh1>ha11no1 emhark on a detailcd and coni~rehcnsi~edircursion of the charter, with whose contents and scope this disting"ished assembly is surely familiar, 1do wish to mention two particular passages in it. One of them, specific in character, is relevant to Ourcontinental organization and its peace-loving tra- ditions as embodied in Our Hemisoheric international law. while the other. gcneral in :haracier. addresses the néedsand wiihes ol'all the ui~rld'.;pople The repre,cntati\es of the counirics of the Americas sought io include in ihe DOCUMENTS SUBMITTED BY THE UNITED STATES 347 Charter our entire international legal heritage as it is enshrined in treaties, con- ventions and other agreements, and as it livesand pulses in the consciousness of the New World. The diversity of traditions and perspectives prevented the realiration of this Hemisoheric ideal: nevertheless. the effort did result in r-coe- nition of the existence of regional arrangements and agencies, as reflected in the reference in Chapter VI11on Regional Arrangements to "such matters relating to the maintenance of international peace and security as are appropriate for regional action, provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations". Economic and social problems are considered in the Charter, and, inasmuch as their precedence over merely political ones is acknowledged, an Economic and Social Council is created and international cooperation is regulated with a view to solving them. At borh the Chapultepec and San Francisco Conferences; the Delegation of Nicaragua advocated the organization of a comprehensive peace that mus1 he capable of bringing about the collective well-being of nations if it is to he no1 just a truce between conflicts but a permanent condition in which al1meil can live on this earth, free from fear and poverty. It was our view then as now that suffering and unmet needs can never he a propitious environment for a life of concord and harmony. As a famous orator remarked, war must he prevented not only hy force but also hy the achievement of social peace among peoples. To conclude, 1must refer to the Statute of the lnternational Court of Justice which ishased on the draft prepared in Washington byan international committee of jurists. In the work of the Conference, the Latin American countries, in keeping with their advanced international law, took a stand in favor of the hinding jurisdiction of the Court in the settlement of international disputes. They had to bow to the thesis of voluntary jurisdiction which prevails on the other continents, and con- sequently States were left free Io decide whether they wanted to suhmit their disputes to the international legal organization that was created. However, the Charter left intact the nght of States Io subject themselves to thejurisdiction of the Court pursuant to earlier agreements or by virtue of future arrangements. Such are the main outlines of the important documents which 1hereby submit to you as the best security machinery it has proved humanly possible to devise against the horrors of war. 1avail myself of this opportunity to renew to you, Gentlemen, the assurances of my highest consideration. (Signrd) Mariano ARG~ELLO MlLlTARY AND PARAMLLITARY ACTlVlTlES 14Novemher 1955 My dear Mr. Secretary : 1. Some days have elapsed since 1 received your kind letter oflering me the hospitality of the City of Tegucigalpa during my stay. You were most kind in saying that you would take care of my friends. 2. 1regret to say that it will he impossible for me to come as soon as the 14th of Decemher 1955.Can't you and Mr. Davila come here in Decemher, and go over the situation with me? 3. 1 think it is not too much to say that 1 have worn myself sick, thinking about this question of jurisdiction. 1 went to Geneva in the summer, and con- ferred at length with the officiais of the United Nations and the olficials of the International Court of Justice. The trip was very rewarding, in that 1could discover al1the facts which were inGeneva. 1discovered several facts that were new. 4. It would take little of your lime to come to Cambridge, and you would be doing a big thing for Honduras. 1would suggest that you and Mr. Divila try to spend the week of 5 December 1955,or of 12 December 1955,here. 5. In the hope that you can do this, 1 have prepared a rough sheet, which 1 sball propose as the subject of our discussion. You and Mr. Divila can master what is in this sheet, and we could then discuss it.1 hope very much that you can come. 6. 1also have in mind definite answers to your questions, which 1 shall give at a later date. Some of them are on pretty slim ground, but 1shall deal with al1 of tbem. 7. If you cannot come, I shall try to he on hand in Honduras by the latter part of January 1956. With the pleasantest ofgreetings, 1am Very sincerelyyours, (Signed) Manley O. HUDSON. DOCUMENTS SUBMITED BY THE UNITW STATES 5. Lsrrim PROM MANLEY O. HUDSON TO ESTEBAN MENDOZA OF 16 DECEMEEX 1955 WITH ATTACHEA UIDE-M~MOIRE 16December 1955. Dear Mr. Minister : With great glory to you, 1send you the revised copy of the Aide-Mémoire. Warmly yours, Manley O. HUDSON. Signed for Judge Hudson in his absence. Laurence A. BROWNJ,I. (1) In May 1955,the Government of the United States of America instructed the Ambassador of the United States in Honduras, and the Ambassador of the United States in Nicaraeua. to make a suaeestion to the res~ectiveGoverninents to which they were a&redited that the-gest way to prev>nt friction belween the two countries over the question of the boundary between Honduras and Nicaragua, would be for them to go ta the lnternational Court. This action by the Government of the United States followed the action which was takcn by the Government of Honduras in April 1955 in order to expel from Honduran territory a detachment of Nicaraguan troops. (2) The Honduras Government advised the Government of the United States through ifs Ambassador in Washington fhat if was fhoroughly in accord with the principle embodied in the foregoing proposition. (3) So fa1 as we know, the Nicaraguan Government has not made a similar statement. (4) The statement made to the Secretary-General of the League of Nations on November 29, 1939,was that Nicaragua had ratifiçd thc Protocol of Signa- ture of the Statute of the Permanent Court of International Justice, and that the instrument of ratification would follow. The instmment of ratification of Nicaragua has no1 been round. Of course, the instrument of ratification of the Statute, which Nicaragua had signed on September 14, 1929, would have had the efect of bringing into force the declaration of September 24, 1929,by which Nicaragua "recognized as compulsory unconditionally the jurisdiction of the Permanent Court of International Justice". (5) Since the United States Government has shown very much interest in this auestion. inasmuch as it r7nr~ ~ ~s the maintenance of oeace and sec~~~,v in this ieniispherc. the Honduras Guii.rnmeni respr~lully req;crt\ ihst ihc Governnient of the IjnifeJ Sldfessk the Niclir-pua a~ihoriiies whliwiiimelint bv ihr action of November 29, 1939. MILITARYAND PARAMlLlTARYACTlVlTlES Decemher 20, 1955. Dear MI. Minister: 1 enclose herewith the Opinion concluded. It is not as we would have wished it- you and I! Yet 1 cannot see any escape from the conclusions that are reached in this Opinion. 1 very much regret that we have not reached other conclusions. 1 shall long think of you and Dr. Divila, and shall as long remember your many kindnesses ta me and your constant hacking of me. It is a great thing that 1will rememher. Faithfully yours, (Signed M)anley O. HUDSON DOCUMENTS SUBMITiED RY THE UNITW STATES 16 lanuary 1956. My dear Mr. Minister: (1) 1have receivedyour letter of 4 January, which pays attention to the work we have done.. .. (2) 1 very much regret that Nicaragua has not ratified the Statute of the Permanent Court of International Justice in 1929. It is a bad thing from our point of view. (3) 1think your conversation with Mr. Holland did a great deal of good, and 1very much await the result. 1 note that Mr. Holland will advise Nicaragua to accept the jurisdiction of the Court, but1think that it is almost hopeless. (4) In your last paragraph, you refer Io my continuing "to render us the assistance of your experienceand knowledge". 1should be only foo happy fo do this, and 1am constantly on the alert for anything whichyou may need metodo. (5) At the present time, 1am at work, as you directed when you were in my office,on the statement of the Honduran case before the Court. 1think a ..~~~ case can be made for it, and 1 think that we can use it somehow. In any event, 1think the job should be done. ................ With assurances of my great esteem, 1 am Sincerelyyours, (S~gned)Manley O. HUDSON MILITARYAND PAMMILITARY ACTlVlTlES 8. L ~ R FROM ESTEBAN MENDOZA TO MANLEY O. HUDSON OF 10 FEBRUARY 1956(SPANISH WlTH ENCLISH TRANSLATIO OFN11FEBRUAR1 956) [S'anishtex1 nofreproducedl Secretaria de Relaciones Exteriores de la Republica de Honduras Tegucigalpa, D.C., FebruaryII, 1956. Excellency: 1have the honor to acknowledge receipt of your letter dated January 18, 1956, which has remained unanswered due to my temporary absence from the country. 1have been authorised by the President of the Republic to accept your very important professional services in drafting the demand Io be filed by Honduras before the International Court of Justice against Nicaragua, on our boundary question. ............................ Uo to this moment 1 have heard nothine definite about outcome of mv represcniationi berore Mr. IlollanJ. Ikntiu,ozy ihat the Nicaragu:~~rnba$sada;r IO Washington ha5 now rciurned to ihat ciiy aftcr having conrulted with hi, Go\~ernmciit As "ou.I fecl11is hirh.v i.nrobahlc that Nica-acuii should accent the obligatory juLisdi'ctionof the Court. In such a case, how would you suggestthat weuse the work you are preparing? Your letter states that it is your opinion that such a work should be done and therefore the Honduran Government would very much like Io know if you have any idea or suggestion to make thereon. Allow me to remain, my admired Doctor Hudson, Very truly yours, (Signed) Esteban MENDOZA DOCUMENTSSUBMITIED BY THE UNITED STATES 17 Fehruary 1956. My dear Mr. Minister: 1. 1have today received your letter of II February 1956,and 1must at once thank you for taking the trouble to attend to it. ............................ 6. 1 am not surprised that you have heard nothing from Mr. Holland. The kind of thing that he attempted requires a good deal of time, and it is not to he decided very quickly. While it seems improbable that obligatory jurisdiction of the Court will he accepted by Nicaragua, there is some chance of it left. 7. On this chance, there is a basis for you to go to the Court. The document that 1 shall prepare, subject to your changes, might be filed with the Court. Nicaraeua could then he notified hv the Court of the case. The motio~ ~ ~ ~ rcs~"fin ihc Nicaraguan drclaraii;,n rihc) findthcnisclvc\ciimpcllçd to resort to a justice court. (b) To fulfillthis requirement, the Honduran Government has sent two notes to the Government of Nicaragua - one dated July 11, 1955, and the las1 one January 12, 1956.In hoth of these communications the Government of Honduras insists on the validity and compulsory nature of Award rendered hy His Majesty the King of Spain, demanding the prompt execution of same. The Nicaraguan Government answered the first of said notes under date of Septemher 29, 1955, claiming the Award's nullity, repeating the same arguments it kas used since 1912.To date the Nicaraguan Chancery has not replied to communication sent over four months ago hy the Government of Honduras, and in al1certainty, if it ever does it will he continuing to reject our claims. This alone constitutes sufficient proof of the fact that it is impossible to settle this matter directly between both countries and therefor we are compelled to submit question for a final decision to the Court. (c) In order you may he acquainted with contents of aforesaid notes and use same in the most advantageous way, 1 will soon fonvard to you an English translation of them. In accordance with Minutes of the Sessions of the Nicaraguan Senate and Chamher of Deputies, which 1suppose are in your possession, the ratification of the Signature and Statute Protocol of the Permanent Court of International Justice took place in 1935 and not in 1939, and based on this 1 consider that perhaps it would he advisahle to make a correction at the end of No. 10, page 41 of vour draft. ~oecenib; 23. IYlJb. As )OU nell kniiu,, the Nicarap~an Govtrnment ha\ granicd on \ïrious dales. li~rscvcral \cars. al1kinds of lumher and rninind concessions in ~hcIlonJuran territory occupied hy Nicaragua, which has caÜsed considerable losses to the Honduran national economy. In addition, due to Nicaragua's refusal to execute the King of Spain Award, Honduras was compelled in 1918and 1937to resort to mediation, thus having to make large disbursements. And finally we would have to take into account the large expenditures to be made hefore ohtaining a resolution from the International Court of Justice. Under such circumstances, do you think that Honduras is entitled also to request an indemnity? Except for the above considerations 1have nothing elseto add for the moment regarding work prepared by you, which 1 consider of such a high quality that proves once more your excellent and highly appreciated qualifications as an internationalist of world-wide renown. 1 have the honor to express Io you once more my deepest appreciation and distinguished consideration, and remain, Very truly yours, (Signed) Esteban MENDOZA DOCUMENT SSBMITTED BY THE UNITED STATES 359 31 May 1956. My dear Mr. Minister: 1. You have been good enough to send me the Minutes of the Senate and Chamber of Ileputies of Nicaragua, in which it appears that the two bodies consented to the ratification of the Protocol of Signature and Statute of the Permanent Court of International Justice in 1935.Acting on your letter of May 9, 1956,we had previously found the action of the Senate and of the Chamber of Deputies. 2. You and Dr. Davila seem to think that this is a sure basis on which to e\tlihli>h the jurisdliiion and cimpeirniytifthe Internxiional Couri orJu\ticc. to re,oli,c ihe pciitii)n ivhiih Iloiidiirüs u,illmlikc apinbi tiicliragua. 3. \\'c Iiüveewniine~lXII011.u (;ilc<,l'romJanuür) 1. 1935.doun 11Jsn~ar! 1939, and the numhers which appeared from July of 1'939to the end of ~uke 1940.We are continuing Io examine La Gacera to cover al1of the numhers down to 1941.We have found nothing. As you know, it is a terriblejob; we have no index, and no guide to Lu Gacera. 4. 1think your opinion is very optimistic that there is any basis on which to establish the jurisdiction of the International Court of Justice, or even the Per- manent Court of International Justice. We have no1 found any action taken by the President of Nicaragua on the Protocol of Signature and the Statute of the Permanent Court of International Justice, as required by the text of para- graph 3 of the Protocol of Signature of December 16, 1920; I cannot find that this provision had been modified hy the Protocol concerning the Revision of the Statute of the Permanent Court of lnternational Justice of September 14, 1929. (1 am sending you the Fourth Edition of the Statute and Rules of the Court.) The action bv the President of Nicarae-a would be necessarv for vour ~oncluriiinthüt thcre'lr;isure ha\i\ on which turior1iiterniition;ilJu.tiie aiid the Intcrnxii~n~lC'oudi'Ju\ticc. A \oie in Fivar of rrliitic~Lih\ the tsio bodies of the I\ülii>nal<'oneri.rsiiierelv means, to us, that the two bod;es are giving consent to ratificatioby the ~res:- dent. 5. It is the ratification by Nicaragua of the Protocol of Signature and the Statute of the Permanent Court of International Justice, for which we are looking. The nearest indication we have of it is the telegram of November 29, 1939. It is not the ratification of the Statute and Protocol of the Permanent Court of Internationÿl Justice, but it is a notice that they were sending the ratificationoportunamente. The ratification was not received. With warmest regards, 1am Sincerelyyours, (Signed) Manley O. HUDSON. MlLlTARY AND PARAMILITARYACTIVITIES June 26, 1956. My dear Mr. Minister : 1. 1refer to your letter of lune 19, 1956,which 1have received yesterday ............................ 5. It seems ta me somewhat early to talk about what you cal1the Counter- Case. If you will notice Article 41 inthe Rules of Court, you will see that much depends on whether the proceedings are initiated by Special Agreement, or whether thev are initiated bv ,ool..ation. We don't know whether there is to he ~ ~ ~ ~ a Coiinter-Gemhthl\ would xiLc somc timc 1 suggest that, at the present time, you arrange for thépayment of what you have agreed on for the draft of the Application, and what may he agreed on for the Memonal. There need be no special agreement made at this time for the Counter-Memorial, as that must be left for adjustment. 6. 1 am not sure what is in your mind when you refer to the "Findings" ("conclusiones"). If this refers to whatever finalpapers may be necessary, perhaps 1can assume some or al1of this expense. ............................ 8. 1 have decided ta leave for Geneva on July 4, leaving Cambridge on July 3; so that 1 shall he there July 5, 1956.Please address a reply ar once to me at Horel d'Anglererre, Geneva, Switzerland. My plan is to work on the Memorial as soon as 1arrive there. With warm regards, 1am Very sincerelyyours, (Signed) Manley O. HUDSON. UOCUrnNTS SUBMITTED BY THE UNITEU STATES 15. LETTE FROM MANLEY O. HUDSON To ESTEBAM NENDOZA OF 23 Aucus~ 1956 Hotel d'Angleterre, Genève. Aug. 23, 1956. Dear Mr. Minister: 1. 1thank you very much for your letter of July 14, 1956(the Spanish is dated Aug. 17, 1956). 2. 1am very glad to have the statement concerning the feefor the preparation of the Memorial. 3. 1 am not al al1 hopeful that the Court will decide the jurisdiction in our favour. 1have stated the case in the Application. Men with whom 1have ialked generally seemeddoubtful about the Court's upholding thejurisdiction. We have stated in the Application that the Court would hear down on the failure to send in the "Ratification". 1think we can do no more as things now stand. I regret this verv much. 4. I &al1 be glad to see Dr. Daviltain Sept. I plan to be back on Sept. 4. With high esteem 1am, Most sincerelyyours, (Signed) Manley O. HUUSON. Of course the Nicaraguans may not attack thejurisdiction. MILITARV AN0 PARAMILITARV ACTIVITIES 16. LE~R FROM JORGE FIOBI.DURON TO MANLEV O. HUDSON OP 30 APRIL1957 Tegucigalpa, Honduras, April 30, 1957. Dear Professor Hudson: 1have your two letters of March 29 and April 25, 1957,for which I wish to thank you. First of all, allow me to excuse myself for not having answered sonner. How- ever, it is needless for me to say that with two important cabinet portfolios, State and Education, now in my hands, my lime is limited for writing personally personal letters. The situation with Nicaragua kas now become so acute that the Military Junta adopted the following course. Having the neighboring Government attacked us again and taken possession of Mocoron, some 22 kilometers from the bordering Segovia river, after exhausting the peaceful methods of protest and obtaiuing no satisfaction but instead a new daring declaration that Mocoron belongs to Nicaragua, there was no other course but to start a cleaning operation which involves not only the new territory invaded but also the one illegally occupied since 1937, while we were signing the Pact of Reciprocal Offerings of San José agreeing to withdraw al1troops, pact which we did keep, but unilaterally. Simultaneously, on April28, my Officeannounced to the "OEA that we were accusing the Nicaraguan Government as aggressor under the clauses of the Rio Pact of Reciprocal Assistance of 1947 and the Bogota Pact of 1948, promise which we kept and at 6:pm today our allegation, as per enclosed copies, was filed with Dr. Fernando Lobo, President of the "OEA" in Washington by Our Ambassador. As this nroceedin" is uniaue in Ourhis~~.v we are still unacauaint~~ with the rules of procedure but we believe that at least, by notifying also the Foreign Officesof al1member States, we have left clear that the Nicararuan Government is an aggressor and expect to prove it as we are gathering al1the necessary proof to be adduced by a Delegation composed of Dr. Ramon E. Cruz, Dr. Marco A. Batres, Dr. Humberto Lopez Villamil, Secretary Dr. Hidalgo and Engineer Ynestroza with you as our Counsel. Dr. Villamil shall cal1on you as he is leaving tomorrow in advance of the rest of the Delegation. The terms proposcd by you are acceptable and Dr. Villamil will talk to you more specifically on the subject. First of all, what we want to do is to create conscience around the justice of Ourcase by proper divulgation and distribution of the opinion of the brief of John Bassett Moore. With renewed admiration and esteem, believe me, Sir, your friend sincerely, (Signed) Jorge Fidel DURON. WCUMENTS SUBUITTEDBY THE UNITEDSTATES June 25, 1957. Dear Judge Dr. Hudson : It is a great honor for me to refer to your letter of May 27. 1should take this opportunity to tell you how much 1enjoyed to have met you, and how great is the esteem you deserve of the Honduran people for the excellent advice you are giving to us. At large 1 will give you a digest of the main activities carried out upon re- tuming from Washington: 1. 1attended the Conference of Foreign Atfairs Ministen held in Antigua Gua- temala, Guatemala. The purpose of the meeting was Io discussa way on how the Governments of Honduras and Nicaragua could reach, hy direct agreement, a settlement of their differences. Unfortunately, nothing was carried out. The Nica- raguan Foreign Minister declared, however, that Nicaragua agrees to suhmit the case before the Court of lnternational Justice. 2. This month we have heen working on the same suhject, but in a special manner studying three drafts of agreements proposed hy the Commission Ad- Hoc of the Organization of American States. On the 20th, Iwo members of said Commission arrived in town, Ambassadors Quintanilla and Garcia. With them we discussed the drafts above mentioned, having accepted the third whose main articles read as follows: (1) The Contracting Parties having recognized and accepted ipsofacto the jurisdiction of the Court of lnternational Justice in the "Pacto de Bogota", now agreed to suhmit the present case to the Court, in order to settle their diiierences regarding the Awurd STKIES 18. TELËGRAM FROM UNITEDSTATES EMBASSY TEGUCIGALP TO SECRBTA ORY STATEOF 19 MARCH1957 March 19, 1957. Have ioniidentilil informaiion that Manley Iludton of opinion thai t1ondur;is' ssrumption th31 NicaraguissubjectIOthe Court may no1he\alid sincc aJi,iu. to Court of iuhnii\iiioiuri,Jiition wlis bv I:orcign OWccc:ihle ~romioinr! later forward written ratification which appirently never sent. ~ssGme howëver in view advice from Managua and Washington of Nicaraguan willingness ICJ adjudication thatery effort will be made to see that Nicaragua does not hack out rrom this possibility peaceful settlement problem for al1time. MILITARY AND PARAMILITARYACTIVITIES Tegucigalpa, Honduras, March 19, 1957. Dear Dick : You will have now received the news that Honduras has publicly announced its decision to take the border dispute to the International Court. In view of my conversation with Pack Neal in which the Department seemed to be very pleased when 1previously advisedthat Honduras intended this course of action, 1assume that the actual taking of the action will go a long way towards calming any worriesthe Department might have as to Honduras' peacefulintentions, especially since in discussing and advocating this action with the Foreign Minister and the Junta 1 made the point that 1 felt that no nation that had a matter hefore the Court could use military self-help while the case was pending and still maintain stature in international eyes1 sincerely hope that Nicaragua will go along with the Court procedure as stated by the President to Tom Whelan and by Sevilla Sacassa through the Department, despite the fact, as per my cable No. 378,there appears to be some doubt as to whetber Nicaragua has in Pactalready submitted itself to the Court's jurisdiction. You will recall your cabled instructions which resulted in my pointing out to the Government of Honduras that in the absence of any public declaration of peacefulintention the climate for aid to Honduras, through SmathersAmendment loans, etc., would not be propitious. 1hope that in viewof Honduras' gesture of going to the Court that the climate is back to normal again and that the consi- deration of economic assistance can now receivea prompt decision on its merits. 1 would greatly appreciate your views on this as soon as convenient. With warmest personal regards. Sincerelyyours, (Signed) Whiting WILI.A~ER. DOCUMENTS SUBMITTEDBY THE UNITED STATES 20. MEMORANDU MROM THE DEPARTMEN TF STATE,OFFICE OF THE LEGAL Ar>vIsEn10 DECEMBE1R 946,TRANSMITTIN MGEMORANDU EMNTITLE" DREFERENCE TO INTERNATIONC AOLURT OF JUSTICEOF DISPUTEU SNDERTRUSTEESHA IGREE- MENT FOR JAPANESM EANDATEID SLANDS"6, DECEMBE1 946 (Note: The only available copy of this memorandum is of poor quality and difficult to read, especially at page 4, which contains the material relevant to this case. Therefore, for the convenience of the Court, the United States has included a retyped version of that page) [Pages 1-3 of Memorandwnof 6December1946nof reproduced] December 10, 1946. To : SPA, Alger Hiss AH, E. A. Gross IS, H. F. Bancroft DA; J. F. Green JA, H. A. Borton From: Le, J.B. Howard 1 am attaching a memorandum on reference of disputes under the trustee- ship agreement for the Japanese mandated islands to the International Court of Justice. 1 would appreciate your comments so that the memorandum may he prepared in final form for submission to New York. Atrachment As stated above. [Page 41 alone were~c~ ~et~nt to enforc~~the a.~~eme~t ae..nst the Uni~~d States. no ili+puic:<>ulJhradjuJii~t:~I b) the Court ina\mucasthe Seçuriiy C'.>une1nxy iiot he;pdrt! bcforc the Court anJ tlie onl, Ice.ilrcnicily<~ithcSciurit? C'ouncil would bë to ;eauest an advison, o~inion fLom-thecouit If other mekbers of the ~niied~~ations are pemitted to enforce their rights against the United States under the trusteeship agreement directly in the Court, the agreement would in this respect resemhle-a multilateral agreement. In such case, it should be noted that the Senate resolution provides that the declaration of compulsoryjurisdictionshall not apply to "disputes arising under a multilateral treaty, unless (1) al1parties to the treaty affected by the decision are also parties to the case before the Court, or (2) the United States specially agrees to jurisdiction". Even though the trusteeship agreement may not he a "treaty", it is doubtful whether the principle in this proviso was intended by Congress to aooly onlv to treaties and not to executive aereements. since breaches of obli- &;ions under both come equally within the-compuls~ry jurisdiction accepted in the declaration. The acceptance of the New Zealand type provision would therefore appear to constitute an agreement to jurisdiction of the type excepted in the proviso in the absence of special agreement. The type of provision which368 MILITARYAND PARAMILITARY ACTIVITIES is recommended in this paper would permit as a limitation upon the agreement of the United States to jurisdiction of the Court over disputes arising under the trusteeship ageement, the requirement that al1 parties afected by the decision must also be parties to the case before the Court. Le : JBHoward :jdr. 12/6/46. DOCUMENTS SUBMITIED BY THE UNITED STATES 21. "PRE~IDENTP owe~ TO GIVENOTICE OPTERMINATIO ONUS-ROC MUTUAL DEFZNST EREATY"M , EMORANDU FMR THE SECRETAR OFSTATE FROM THE LEGAL ADVISERD ,EPARTMEN OTSTATE1 ,5 DECEMBE1 R978,AS REPRODUCE DTREATY TERMINATIOH N,ARINGB SEFOR EHE COMMITIE OEN FOREIGN RELATIONU S,NITED STATES SENATE N,INETY-SIXT CONGRESF SI,RSTSESSION9,, 1AND 11APRIL1979 Decemher 15, 1978. This memorandum confirms mv advice to vou that the President has the authority under the Constitution Codecide whefher the United States shall give the notice of termination provided for in Articlethe US-ROC Mutual De- fense Treatv and to give chat notice. without Coneressional or Senate action. While treaty termLation may be,and sometim; has heen, undertaken hy the President following Congressional or Senate action, such action is not legally necessary and numerous authorities recognize the President's powerta terminate treaties acting alone. Presidents have exercised that power on several occa- sions. The following sections of this memorandum note the views of a numher of Constitutional and international law authorities, and identify previous Presidential treaty terminations undertaken without action hy Congress. An Appendix to this memorandum contains detailed histories of past US treaty terminations. VlEWS OF CONSTIiiiiIONALAND INTERNATIONAL LAW AUTHORlTlES The Restatementof the Foreign RelationLaw of the United States,by the American Law Institute, States in Section 163: "Under the law of the United States,the Presidentor a person acting under his authorityha.s,with respectio an internationalagreement towhich the United Statesisa party, theauthority...take theactionnecessaryto accomplish under the rule stated in section 155the terminationof the agreemeniin accordance ivitprovisionsincludedin irfor thepurpose..." (At p.493.)' Sccti<>n155or the Rcstatcincnt pro\irlcr ",litintcriiation~l 3grccniiii3y bc tcrmindicd in .iccdrtlsncc u.irh pri~vi.ion. in;ludeJ ior rhat purpo~ in the dgrccniciii(dlp. 177). Tlic RC~~~~I~C.~n~~iIIn10Sectiun 163,tatcs. "The rules stated in this Sectionare based on the authonty of the President to conduct the foreign relations of the United States as part of the executive power vested in him hy Article II, Section 1, of the Constit. . The greatmajority of cases in which the President suspends terminates,by actingalone,an internationalagreementto which theUnited Statesisa party, are cases in which the agreement contains provisions for its suspension or termination." Professor Louis Henkin, Hamilton Fish Professor of International Law at *Emphasissupplicdthroughout370 MILITARY AND PARAMILITARY ACTIVITIES Columbia University, States in his book Foreign Afiirs and the Constituiiun (1972) that : "Once the Senate has consented, the President is free to make (or not to make) the treaty and the Senate has no further authority in respect of il. Attempts by the Senate to withdraw, modify or interpret ils consent after a treaty is ratified have no legal weight;nor has the Senareany auihorirarive voicein inrerpreringa treuryor interminaringil." (At p. 136.) Dr. Elbert M. Byrd, Jr.. of the University of Maryland, has written in his book Treaties andExecuiiveAgreemenrsin rhe UnitedSrares (1960) that: ". ..from a constitutional view, ilis much easier to terminate treaties than to make them. A treaty, by definition in constitutional law, can come into existence only hy positive action by the President and two-thirds of the Senate, but a simple majority of hoth Houses with the President's approval can terminate them, and ihey moy be terminaredby the Presidenralone" (At p. 145.) Professor Laurence H. Trihe, of the Harvard Law School, has written in his recently published American Consriruriona Llow (1978) as follows: "Although influenced(often decisively)by congressional action or consti- tutional restraintrhePresidenr ... hase.rclusiveresponsibilirfor announcing and implementingmilitary policy, for negotiating, administering, and iermin- atingrreariesor executiveagreements; for estahlishingand hreaking relations with foreign governments; and generally for applying the foreign policy of the United States." (At pp. 164-165.) MI. Wallace McClure, in his work entitled InternationalExecuriveAgreemenls (1941), wrote: "Il is customary for treaties to carry provisions layingdown the steps to he taken if one of the participating governments wishes to divest itself of the obligations which have been assumed; for instance, a year's notice by one party to the other or others. But treaties do not specify the organ of the national government by which such notice is to he given. In rhe Unired Sraresthe Execurivegivesthe nuiice. Somerimeshe hasgivenir on hir own iniriaiivesolely. In treaty making the Senate may be said to act merelyas executiveadviser and check against positive action; negariveaction, not heing feared hy the constitution makers, was lefr ro the reposiforyofgeneral e.recurivepower, rharis, to the Presnleni."(At pp. 16, 306.) Professor MyresS. McDougal, William K. Townsend Professor of Law at the Yale Law School. wrote as follows in his studv with Asher Lans on "Treaties .inJ C~ingrcr~iiindi-Elciutl\e or Prcsidcnii;il Agrceiiiciiti. Interchangeahle Ins. trument. iiiNlilii,nlilPoli;!",54 LiiixJ,iurn~i136(1945): ". ..termination [of treaties] mdy he eflected hyexecutivedenunciuiion ,ith or wiihoutprior Congressionaa luihorization"(al p. 336). Professor Randall H. Nelson. of Southern Illinois Universitv.in an article en- titled "The Termination of ~reaties and Executive ~greemeAis by the United States: Theory and Practice", 42 Minnesota Law Revieiv (1958) wrote that: "Diplomatic practice coupled with judicial opinion demonstrates that the President, as the chier organ of foreign relations, has the primary responsi- DOCUMENTS SUBMITTEU BY THE UNITED STATES 371 bility with respectto the termination of treatiesHe mayperform thisfunction ulone or in conjnnction with the Congress or the Senate." (At p. 906.) The late Professor Jesse S. Reeves, of the University of Michigan, inan article entitled "The Jones Act and the Denunciation of Treaties", 15 AmericanJournal of International Law (1921), stated that: "lt seems to be within the power of the President to terminate treatiesby giving notice onhis own motion withoutpreviousCongressiunulor Senutorial action. It would seem, on the other hand, that the President cannot be forced by Congress or by the Senate to perform the international act of giving notice." (At p. 38.) Professor Westel Willoughby, late of Johns Hopkins University, wrote in his work The ConstitutionalLaw of the United States (1929) that: "It would seem indeed, that there is no constitutionulobligationupon the part of the Executive to submit his treaty denunciationsto the Connress for ils approval and ratification although, as has been seen, this has been done several times." (Vol. 1,at p. 585.) PREVIOUS PRESIDENTLAL TREATY TERMINATIONS The President has taken action in a number of instances to terminate treaties without ~rior or subseauent action hv either house of Coneress. Such Presidential action has included &ing notice of termination of hilateral treaties and notice of withdrawal or denunciation of multilateral treaties, pursuant to provisions in the treaties, and in a few cases, execution of termination agreements with the other parties to bilateral treaties. Following are instances of treaty terminations effectedby the President without Congressional or Senate action: In 1815, President Madison exchanged correspondence with the Netherlands which has been construed by the United States as establishing that the 178? Treaty of Amity and Commerce between the two countries had heen annulled. In 1899, President McKinley gave notice to the Swiss Govcrnment of the United States intent "to arrest the ooerations" of certain articles of the 185~ ~ ~ convention of Friendship, commerceand Extradition with Switzerland. In 1920,President Wilson by agreement terminated the 1891Treaty of Amity, Commerce and Navigation wiih ~elgium concerning the Congo. In 1927, President Coolidge gave notice of termination of the 1925 Treaty with Mexico on the Prevention of Smuggling. In 1933, President Roosevelt deliveredto the League of Nations a declaration of the United States withdrawal from the 1927 multilateral Convention for the Aholiii<~nor Iinpori iind Iiicc ,>i icrminsii.is an ini~ortaiit inriancc oi'tlis rizlit ,iithcc\ciutive to Jecide unon the -blir?.itions of ihe country with regardto foreign nations. Hence, in the instance stated, treaties can only he made by the president and senate jointly, but their activity rnay be continued or suspended by the president alone." (Lertersof Pucificusand Helvidiuson rheProrlomutionof Neutrality of1793, Gideon, Washington, 1845,pp. 12-13.) A Presidential notice of termination Dursuant to the terms of a notice orovision d.>esnoi c~nstitutc ;in abrog~tiori or rcpclilol ihe Pau oi the Isnd, hut raihcr i, a tcriiiinlitiuin the manncr pre,cribr.d hy the iermh of the 1rr.ai). as dpproied by the Scnats. The PrrsiJeni's c~~nstituii.inalpoiicrIOai\.eJ notice oitcrniiriaiiun govided for hy the terms of a treaty derive; from théPresident's authority and responsibility as chief executiveto conduct the nation's foreign afïairs and execute the laws. When a treaty takes eKect as an international agreement and law of the land, the President must see that its terms are carried out. The Senate's role in giving advice and consent to the making of the treaty is fulfilled when the treaty is made; thereafter execution and performance of its terms, including terms relating to its duration or termination, are delegated by the Constitution to the nation's Chief Executive. Where the treaty provides for its termination by UOCUmNl'S SUBMITTED BY THE UNITED STATES 373 notice, the President, as the officercharged hy the Constitution with the authority and responsihility for the conduct of the nation's foreign affairs and execution of the treaty, has the power to give such notice when he deems termination to he necessary or desirable for the best interests of the United States. COURT DEClSlONS Three cases in which the Supreme Court has dealt with treaty terminations have reflected the ~rinci~lesthat leeislation mav sunersede the domestic leeal effectof treaties and thai whether aireaty should be'deemed tobe in effect For international law and foreign relations purposes generally will be determined by the position of the ~xecutive. Thus, in Charlton v. Kelly, 229US 447 (1913), involving the question of whether non-performance hy ltaly of an extradition treaty justified refusa1 of performance bythe United States, the SupremeCourt held that it did not hecause: ". .. the political branch of the Government recognizesthe treaty obligation as still existing... The executive de~artment havine thus elected to waive anv rieht to fÏee itself from the ohliéationto delive; un its own citizens. it is ihe Plain duty of this court to reGgnize the obligation to surrender ihe appellant ..." (At pp. 474-476.) In Terlindenv. Ames, 184US 270 (1902). also involvingthe continued validity of an extradition treaty the Supreme Court stated ". ..we think that on the question whether this treaty has ever been terminated, governmental action in respect to it must be regarded as of controlling importance"; and it refused to ieview the position of the German Empire that the treaty was still in force "especially as the Executive Department of our Government kas accepted these conclusions and proceeded accordingly". (At pp. 285-288.) In VanDer Wevdev. Oreun TransportCo. Ltd, 297 US 114(1936), in which the Supreme Court held that a treaty provision had properly been abrogated as provided by Statute, it declined to pass on the President's powerto terminate a treaty without Congressional authorization: ". .. we think that the question as to the authority of the Executive in the absence of congressional action, or of action by the treaty-making power, to denounce a treaty of the United States, is not here involved. In this instance, the Congress requested and directed the President to give notice of the termination of the treaty provisions in conflict with the Act. From every point of view, it was incumbent upon the President, charged with the conduct of negotiations with foreign governments and also with the duty to take care that the laws of the United~ ~~tes are fait~ ~ ~v executed. to reach a concluïii>n al 10 the inconsistcnq hct\ic.cn the lirotisioni of the iredi). anil thc nca lan. II is nst pussibli 1,)iry that hi.;cirn~luiion a, IO Articlcr Xlll aiid XIV u,d\ arhitrdry or inadniissiblc. Ildiing d:icrmincd thxi ihcir tcrrnin:iiion u.31necesur!. the I'rcrideni ihriiugh the Se~rciaryof Sixte look appropri3tc itcp, to elkit il." (At pp 117-118 1 CONCLUSION Accordingly, President Carter has authority to give the notice of termination provided for in Article X of the US-ROC Mutual DefenseTreaty.374 MlLlTARY AhW PARAMILITARYACTIVITIES Appendixto iMemorandurnfor the Secretary of State HISTORY OF TREATY TERMINATIONS BY THE UNITED STATES THE WKLY PIUCTICE 1798 - Terminarionby Slarure The first treaties terminated by the United States werethree US-French treaties of 1778,and these were terminated hy a 1798Act of Congress, whose validity was upheld by the US Court of Claims in 1887in the case of Hooper v. United Srores, 22 Ct. CI. 404 (1887). The Hooper case held that the treaties were terminated under hoth US domestic law and under international law. But with respect to the termination of the treaties as a matter of international law, the Court did no1 rely entirely upon the Act of 1798,but rather gave great weight to the actions of the Executive Branch. The Court held that the 1798Act was "binding upon al1subordinate agents of the nation, including ils courts, but not necessarilyfinal as the annulment of an existing contract between two sovereign powers". Asfor international validity, the Court said: "We fail to find that the Executivedid, after the passage of the annulling statute, recognize the existing force of the treaties as an international obli- gation, whatever value may have been accorded 10the claim of France that one party was without power to ahrogate them." (Pp. 416, 423.) For the Court of Claims, the Congress could terminate a treaty hy statute for domestic lawpurposes, but apparently only the ExecutiveBranch could terminate a treaty under international law. 1815 - MadisonAgreemenrro Terminorif~o nf1782 Trearywith theNerherlands The Tirs1Presidential action that appeared to terminate a treaty occurred in 1815 during the Administration of President James Madison. The case is not clear-eut, but scholars have viewed it as the first Presidential termination of a treaty. There was no notice provision involved. After the Naooleonic wars in Eurooe. discussions were held hetweenthe Uni- ted Staics and the I\'rthrrl:inds ionccrning ihc leg:ilstaiu01'ihc 1782comrncr- cidltrclii) ktucen ihe iao countner. (10 HÎi,an~6; ii>r<>txHi~lurr~><~,zr~rlcnirrd Sio~t'~.187.1,P~ri 2, PD. 7?U-727) In 1815. the I)utch Minisicr in W;ishinaton gave a note to ~ecremmcndcdio thc Congrcss in 1845"ihai provision hc miide b) lai" for ri\iiir"ihc tioiiie. Hui itisncitai dllilrar ihat ihr PrcsiJcni believed such autho~irat6n to be legally necessary, and the Congress was itself unsure. There were several expressions of opinion that the President could give the notice without Congressional approval. James Buchanan, who in March 1845 became Polk's Secretary of State and was himself to become President in 1856,said: "It could not ... be expected that the President would give the proposed notice on his own responsibility alone. On the question of his abstract power to do so. 1exmess no ooinion." (CowressionalGlobe. Vol. 13. 28th Cone.u, 1st ~ess.,'~~&ndix, p. 3'45,~arch 12: 1844.) In 1845, before the inauguration of President Polk, a bill to organize a territorial government over the Oregon territory was debated in the House. The Chairman of the Committeeon Territories said tbat when his Committee reported the bill, whichhad no provision for notice to terminate the 1827convention, "they were leaving the executive to act when and how it pleased with regard to giving the notice". He declared that the Committee "did not conceive it a proper question, nor did he think it a proper question now in this House to Sayanything at al1whether this notice should be given. . . ."(Ibid.,Vol.XIV, 28th Cong., 2d Sess., pp. 202, 222,Jan. 27, 30, 1845.) On January 5, 1846,the House Committee on Foreign Atfairs reported a joint resolution that "The President ... cause notice to be given ..." (lbid.,Vol.XV, 29th Cone.. 1stSess..o. 138.)On the same dav. t,r,e members of that Committee submittesa minori;; repor; recommending that the question of giving notice was "no1 a matter for the decision of Congress". The report indicated that the question of notice oftermination was for théPresident alone, or for the President and the Senate together. The report said, in part: "The act of giving the notice is a high discretionary power, created not by the Constitution, but by the President in negotiating, and by the Senate in ratifying, a treaty with such a provision. . . .The House may be, and often is, required to exert appropriate legislativepowers in the execution of treaties; but this notice is not one of that class. It has no property of a legislative power. It is executive in ils essence, or it is, in our system, of the nature of, and incident to, the treaty-making power. It is a high discretion, pertaining not to our interna1 affairs, but to our relations with a foreign Government, created by this treaty-making power itself,resting with it, and depending upon its will alone for the exercise. .. . If the notice be expedient and proper, it has become so without its [the House's] act. It is rendered so hy the refusal of the President to arbitrate the controversy, and by his closing further negotiation. These were his own acts, about which this House had no constitutional right to interfere. The President asked not ils advice or interposition in them, whether they be proper or not. He alone was competent to their performance, and he alone ought to be held responsihle; ... it is his business, not that of the House. In the present state of the question, without expressing an opinion whether the notice ought or ought not be given, and as the solution of that question is constitutionally for him, or for him acting with the Senate, the House DOCUMENïS SUBMIlTED BY THE UNITED STATES 377 ought to be content to leave him to his proper judgment, discretion. and responsibility." (CongressionalGlobe,Vol. 13,pp. 138-139.) One of the sigiiersof the minonty report, Mr. Caleb Smith, in debate on January 7, 1846,stated: "To my viewit isinexpedientto givethe notice, or to instruct the President in regard to his duty on the subject. This is a duty that belongs to the President, and he is responsible to the people for his discharge of it ..." (Ibid., p. 159.) 1858 - BuchananNotice of Terminalionof TreulywithDenmork The next treaty termination hy the United States was debated in 1855.A Sen- ate resolution adopted that year by a two-thirds majorily "authorized" Presi- dent Pierce to give notice of termination of a commercial treaty with Denmark. In April 1856, the Senate Foreign Relations Committee issued a report which concluded that the Senate and President without the House could terminate the treaty. (Cong Recd., Vol.48, Pt. 1, 62d Cong., 2d Sess., p. 501.) President Buchanan gave the notice in 1858, stating he had acted "in pursuance of the authority" of the Senate Resolution. Once again, while a majority of those in the Senate who addressed the issue appeared to take the position that some legislative authority was required for the President to give a notice of termination, uncertainty seemed to be a central theme of the debates, and views were expressed supporting the right of the President to ad alone Dursuant to a notice ~rovision.Thus. for examole.Sendtor James Mason of ~irinia, the Chairman sf the Senate ~ornrnittec'on' Foreign Relations, who had introduced the Senate resolution adopted in 1855,said that it was erroneous to treat the notification to Denmark "as an act abror- -nr or discontinuing a continuous and existingtreaty, when, in truth, it is nothing more than causing a treaty to expire by the terms of its own limitation". Mr. Mason said : "1 am rather disposed to think, although I express no opinion on it, that the President might, under the terms of the treaty with Denmark, without consulting either House, give the notice required, and his act would be perfectly valid." (Cong. Globe,34th Cong., 1st Sess.,p. 601.) Former Attorney General Crittenden observed that if the President could act with the Senate there was no reason why he could not act alone, since there was nothing in the Constitution requiring him to consult the Senate in the abrogation of treaties. (lbid, p. 605.) 1864-Lincoln Noriceof Terminotionof Rush-BugotAgreemenl The first instance of a notice of termination without any prior Congressional authorization came in 1864 under President Lincoln. He gave notice Io Great Britain of US withdrawal from the Rush-Bagot Agreement in 1817under which each nation had agreed to certain limitations on naval vessels on the Great Lakes. The Agreement, in the form of an exchange of notes, provided that it might be terminated by either party on six months notice. The notice was given on November 23, 1864. In his message of December 6, 1864, to Congress, President Lincolnnoted that in viewof the insecunty of lireand property on the Canadian border it had "heen thought proper" to give the notice in question. (James D. Richardson, A Compilaiionof the Messages und Papers of the Presi-378 MILITARYAND PARAMILITARA YCTIVITLES dents [New York: Bureau of National Literature, 18971,Vol.VI, p. 246.)Ajoint resolution was subsequently adopted hy the Congress and approved by the President on Fehruary 9, 1865, which recitedthat the notice given was"adopted and ratified as if the same had been authorized by Congress". (13 Stat. 568.) The notice of termination was withdrawn hy the United States on March 8, 1865,and the Rush-Bagot agreement has remained in force to the presenl day. There is douht as to the value of this case as a precedent since the Executive Branch has never considered the Rush-Bagot Agreement to be a treaty in the domestic law senx. It was concluded as a "pure" executiveagreement without Congressional authorization. (For a detailed history of the agreement see letter of Secretary of State Foster to President Harrison, Dec. 7, 1892,published in Sen. Ex. Doc. 9, 52d Cong., 2d Sess.) The next few cases of treaty termination by notice involved Congressional auihorization or direction, without focus on the question of the President's power to give a notice without Congressional approval. On Ianuary 18, 1865, President Lincoln a..roved a ioint resolution which char~-d the Presidcnt with the c<>mmunic.itiiinof niitisc to ierminate ihr. 1854treaty \i,iihCireai Hriidinon fi,herie,, Jutiei. ünil n;i\ig:i(I hlalloyTrnof initntion "to arrc,i ihc i)pcration;" i)f ihe ainvrniiun. Aficr ihc Uniied Siaies. pursuani in a reciprociiy agrecmcnt wiih brdncc, had granird iertiiin impi)rt hcnefitIO that country under ihc Tarif Act OC1857, itu,as forccd to grmt Su,ii/erlaiid 4milar knrfit. puruant io ihc mfthr Prcsident. the) rcc<~piti/cdtlic vslidity of the ;ici oi' thr. Prr.,~dr.tiIIIdcnsuncing the treat) in ïr.c,>rdanie \sith 11srcrmr". Senator Lenroot agreed with MI. Knox, saying that it was his understanding that in the 1911case the President "proceeded upon the assumption that, as the Executive, there being nothing to the contrary in the treaty itself, he had the right to give the notice of the denunciation of the treaty". (Cong Recd, Vol. 58, Pt. 8, 66th Cong., 1st Sess., p. 8132.) President Taft's ownviewson the matter seem somewhat conflicting. As noted, he communicated the fact of his notice~to ~ ~ ~en~te "~ ~ ~oart~of the t7eatv- making pouCr &>ilhi.C : iovcrnment, wiih J \.leu.ici11srstiî.iation and ,ipprdvdI" kl.ewherc. hiiwe\,er. he >didthat tiis;ictiriy 1916. p. 113.) Seamen'sAct of 1915 In the Seamen'sAct of 1915(38 Stat. 1164). President Wilson was "reauested ~ ,. ~ ~ and directed" to give notice to'the foreign governments concerned that hl pro- visions in conflict with the Act would terminate on the expiration of such veriods as might be required in the treaties. Pursuant to this iegislation the i>epart- ment of State gave the required notices. Merchunt Marine Act of 1920 Section 34 of the Merchant Marine Act of 1920 authorized and directed the President to notify the governments with whom the United States had commercial treaties of its intént totenninate so much of the treaties as restricted the right of the United States to impose discriminating customs duties and discrimina- tory tonnage dues. (41 Stat. 988, 1007.) President Wilsonapproved the Act but declined to carry out the provisions with regard to treaty termination. A Department of State Press Release of Septemher 24, 1920, stated that the Department had heen informed by the President that he did "not deem the direction .. . an exerciseof any constitutional power possessed by the Congress". The De~artment vointed out that the treaties in auestion contained no orovision for termination in ihr. n1.innr.rciintempl~rr.ilhy'~ongrers. snd \tdreJ' that the Prciideni rhcrrfcirc icinridr.red it riiislctding 10 spc~k of "ierni~n:itiun". ci,thc a~tion iou~hi ti> hr. imposcd on the Prcdcnt sm.iiintr.d "IO notliiii- lsss than the hreachor violation of said treaties". Secretary of State Hughes, in a memorandum to the President on October 8, 1921,said that while Congress had the power to violate treaties, an intention to do so was not to he imputed to it. FO; this redson, and because Congress had not seen fit to pass legislation in derogation of the treaties in question, Secretary DOCUMENTSSUBMITTEDBY THE UNITED STATES 381 Hughes concluded that the fair construction of Section 34 would he that it authorized and directed the President ta give notice for termination in cases where such notice could be givenwithout violating the treaty. He further pointed out that Congress had not provided for the termination of the treaties in their entirety and said: "Accordingly, if the President should undertake to abrogate or terminate any of the commercial treaties in question in its entirety, he would he acting on his own responsihility as the Executive charged with the duty of con- ducting our foreign relations, and he would be unahle to find in the lan- guage of Section 34 that the Congress had offered to share with him the responsibility." (Hackworth, Digest of InternaiionalLaw, Vol.V, p. 326.) SenateDebateon Withdrawalfrom iheLeagueofNations The dehates in the Senate on the ~ossihiiitvof withdrawal from the Leaeue of Nations also touched to some extent on théquestion of Presidential noHce of termination. Article 1of the League Covenant provided that any memher of the League mighl, after two years notice of intenfion, withdraw from the League, provided itsinternational obligations and its obligations under the Covenant had been fulfilled. When the treaty was hefore the Senate for its advice and consent to ratification, one of the reservations suhmitted hy Senator Lodge provided that the United States should he the sole iudee of whether its international obligations had heen fulfilledand that notice'of Lithdrawal might be givenhy a concurrent resolution of the Con.qes.. There was considerabledebate on the pro- posal. Apart from the issue of noticehy concurrent resolution, varying opinions were also expressed on the President's rightto give a notice of termination without Congressional approval. Senator Spencer of Missouri, speaking in support of the Lodge proposal, said: "1 mean to say, MI. President, that if the President of the United States saw fit to give notice of withdrawal, that notice of withdrawal would be effective. If it was in vio~atio~ of or in contradiction t~ ~ ~ ~ ~~es o~ the Congress at the time, there would he certain restrictive action, like a joint resolution of Congress, which would be persuasive upon the President, but it would not deprive hiin of his power. Why, Mr. President, the case is preciselysimilar to that which confronts us now. If the Senate, by unanimous vote, should approve this treaty, that does not make the treaty. The President alone can send that treaty to the other signatory powers. His is the only voice which speaks for the United States in international relations; and if he pigeon-holes the treaty, though every Senator was in favor of ratification, the treaty would never come into effect. Such is the power of the Chief Executive of the Nation, and it illustrates the power of the President with regard to withdrawal." (Cong. Red, Vol. 58, Pt. 8, 66th Cong., 1st Sess.,Nov. 8, 1919,p. 8122.) Senator Lenroot argued that if the Senate concluded at any time that the President had no unilateral power to terminate a treaty, impeachment could be resorted to, but he knew of no other way to control the action of the Executive. MI. Lenroot said that the President is the final treaty-making power, since it lies within his power to refuse to complete the treaty after Senate action, and that therefore "he alone has the power, unless controlled in some way hy the treaty382 MILITARYAND PARAMILITARYACTlVlTlES itself or hy action of Congress abrogating the treaty, to denounce" a treaty containing provision for termination. (Cong.Recd, op. cil., p. 8132.) On February 16, 1920,MI. Lodge introduced an amendment to the previously agreed reszrvation on withdrawal, the amendment providing that notice might he given "hy the President or by Congress alone whenever a majority of hoth Houses msy deem it necessary". Thus a specificproposal was made permitting the PresidCntto act alone as an alternative to action by concurrent resolution. (Cong Recd., Vol.59, Pt. 3, 66th Cong., 2d Sess.,p. 2944.) To the question whether if the original reservation (notice hy concurrent resolution) were adopted. the President could nevertheless give notice alone, MI. Lodge replied that that would he in line with the two precedents of Presidential unilateral action which he had cited (McKinley and Taft cases) and which were not questioned at the time. He said he thought it "at least doubtful whether the President has not the power to do that". (Ibid., Vol.59, Pt. 4, Feb. 21, 1920, p. 3230.) Senator Lodge'samendment was rejected, as was an amend- ment pemitting notice of withdrawal authorized hy joint resolution. The reservation in its original form was adopted. (Ibid, pp. 3236, 3241, 3242.) Inthe end, of course, the Senate failed to give its advice and consent to ratification of the treaty as a whole, even withseveral reservations previously adopted. THE MODERN PRACTICE Whilcthe early practice of the Republic indicated certaindoubts and uncertain- ties whether the President alone mie-t av~..~ri.telv ,ive notice of termination purwant 1%)a notice provision. the modern prlictirc revralh no such douhtr. Thc Congress III:~). coursr ~uthurixe the gii'ingoi noiice. ;ilid lids Jonc sd in the rnoJcrn rra Rut ihc ciirrc~itrule. arcenrcd hv ilic E\ecuti\e Rranch. the Senaie and Congress, and the great majority'of modern writers, is that the President mdy also give a notice of termination without prior or subsequent Senate or Congressional approval. 1920 -Agreement (Wilson) Terniinuiing 1891 Trearywirhthe Congo The first significant case in the modern era was the termination of the 1891 commercial treatv with the indeoendent State of the Coneo.u.hich contained no provision for teknation. The'treaty was regarded as still in force after the extension of Belgian soverei~ntyover the Congo. In the absence of a provision for temination,the agreement of hoth partieskas required to terminaie il. In 1915 the United States, pursuant to the Seamen's Act of 1915, notified Belgium of its intention to terminate Article 5 of the 1891 treaty as of July 1, 1916. The Belgian Government, in its reply of June 29, 1916. proposed the temination of the entire treaty. The Secretas. of State then suggested on Novemher 11, 1916, that notice to that eiTectshould come from Belgium. On December 31, 1916,the Belgian Foreign Minister replied that the Belgian note of June 29 was intended as such formal notice and that the 1891 treatv would beJeemeJ to h3w heendenoun~cdon July 1, 1916 IIeenprcrrcJ the undersiand- ing ihat Article 5 had ~elisedto he t>perativeun July 1. I')lh. the other ariicle\ remaining in force for the time being. On December 13, 1920,the United States informed the Belgian Government that it acknowledged the notice (of denunciation of the entire treaty) as given and received on July 1, 1916, and that since the 1891 treaty contained no stipulation respecting termination, it assumed that the wishes of the Belgian Government might hest he met by considering that the treaty terminated after DOCUMENTS SUBMITTED BY THE UNITED STATES 383 such a period of notice as was customarily provided for in treaties of amity and navigation. Accordingly, it wds said, the United States regarded the treaty as having expired on luly 1, 1917, one year after notification by the Belgian Government. (1 Malloy, Treaties, 1910,328; Hackworth, Digest of Internotional Law, Vol. V, pp. 317-318.) The case is important, notwithstanding that there was no notice provision in the 1891treaty. The negotiated agreement of the parties to terminate the treaty was made on the oart of the United States bv the Ex,cu~ ~ ~Branch actine ~~- ~~~- without Congres~hi means of an Executiveagreement.Yetthere was no violatio; no statute necessitating temination of more than one article, and impossibilitv of performance was not a relevant factor. In addition, this approach of termi;. ation by Executive agreement was apparently acceptable to the Senate, which did not question it at that time or suhsequently. Previously, on March 27, 1919, the Acting Secretary of State, in informing the Senate of the requirements for abrogation of treaty provisions which might be affected hy legislation, said that since the 1891 commercial treaty with the Congo had contained no provision for abrogation, "agreement by the parties thereto would seem to be necessary elfectivelv to accomolish its abroeation as an international agreeuent". (Sen. \ - ~ ~ ~ Dac. N< 2, 66th ~ong., 1st sess.,;. 14.) At about the same time there occurred the last of the few instances of a President seekinr authoritv to terminate a treatv. In Mav 1920President Wilson sought the authGrization of the Senate to the cienunciaiion of the International Sanitary Convention of 1903.The procés-verbal of the deposit of ratification of the convention contained a declaration by the signatory powers reserving the right of denunciation. The Convention itself contained no provision for denun- ciation or notice of termination. After President Harding's inauguration the Senate's advice and consent were given by a Senate Resolution of May 26, 1921, and notice of denunciation was subsequently given by the Executive. (Hackworth, Digest of Internationnl Luw, Vol.V, p. 322; 2 Malloy, Treaties, 1910, pp. 2066, 2129, 2130; Cong. Recd., Vol.61, Pt. 2, 67th Cong., 1st Sess., p. 1793.) IY27- Coolidge Notice of Terminution of 1925 Treaty with Mexico On hl.irch21. 1927, il~ringrhe~1rlrninirir.iiionoI Prssideni C:i,i~lidg.circtary oISiaic Kcllogg J~rccicdthe AinhaissJ~~r I(SlicllicIJ) io Jcliveta>the Mexic~n C;oi.crnmcnr 2 noie 2ii.ing rlie ~tli.,i.il nordieir.rminsri<>n<>t'.1925 treaty with Mexico on the prGentkn of smuggling. (9 Bevans 949.) The action was taken pursuant to a provision for termination by notice, and the conven- tion officiallyterminated on March 28, 1927.The notice was given without the direction of either the Senate or the Congress, and was not referÏed to either body for suhsequent approval. It has been argued that in viewof the state of US-Mexican relations at that time, it might have been impossible to implement the Convention. However, there is no evidence Io support that contention. There was a dispute in 1926and 1927 over American-owned property in Mexico, but by a vote of 79 to O on January 25, 1927, the Senate passed a resolution urging arbitration of the dis- pute. On Apnl 25, 1927,President Coolidgeexpressedhopes for an amicablesettle- ment, and on September 21 he named a new Ambassador. On March 27, 1928, the State Department declared that because of steps taken by the Mexican Government, the differences had been resolved. (See Richard W. Leopold, The Growth of American Foreign Policy, 1962,pp. 464-465.)384 MILITARYAND PARAMILITARY ACTIVITIES The Secretary of State's instructions to Amhassador Sheffieldin 1927gave no indication that it was "impossible" to perfom the 1925treaty. His instructions included the following statement as to the US reasons for giving the notice: ". ..the United States has no commercial treatv with Mexico. and ... in the circumstances it is not deemed advisahle'to continue ,n effect an arrangement which might in certain contingencies bind the United States to cooperation for theenforcement of lawsor decreesrelating to the importation of commodities of al1sortsinto another country with which this Government has no arrangement, by treaty or otherwise, safeguarding American com- merce against possible discrimination." (US Archives, 74D431 ;Box 16678.) 111rum. impo~rihility .iiperli~rm~nce WJ, n%>at Facior. ihcrc had bccii iiotre~t) vii~latiiin,and nu ,iibicqueni inconsisicni siiitute or ircaty. The :a\ç .tlnd.d, a clear-cut instance of Presidential notice of termination-without prior or sub- sequent approval by the Senate or Congress. 1933- RoosevelfDenuncirifion of 1927MuIfilriferalConvention In 1933 President Roosevelt, without prior or subsequent reference to the Senate or Conpress, directed United States withdrawal from the 1927multilateral ciintention li>;ihe xh~diiionui iniport .ind erpori prohihiiir?nsünJ resiricti.,nh (2 I3eviinr651.1r\rticlr.6 ui the priorcc .>fihc ci>n\cntion pru\ iJeJ 111x1ailsor thc rirnai<>rir,icithe ~roi~i;<~cl<~ullr.reI~c\c~l of the obligations thereunder hy fomirding a declaration to that effect to the Secretary-General of the League of Nations. (Hackworth, Digestoflnfernafional Law, Vol.V, p. 329.) It has heen maintained that President Roosevelt terminated the 1927 Con- \,enlion xr having a rcdricii\c eiTr.;ion ihc N~iional Indiijiriiil Kcrti\r.r) ,\ct ai 1931. and th;ii the 1927 convc~ition riüi iii;orisisiciit wiih prc\xiling Icgi>- ~~11011. In hci ihcrc rias iiothing in ttir Naiiiaii;e b, 111s nations of the world community. A convention on &e abolition of imporf and export prohibitions and restrictions clearly needed widespread acceptance to be effective,and particularly during a time of world-wide economic depression. The background to this US termination is as follows: The protocol concerning the entry into force of the Convention was signed at Paris on December 20, 1929, hy the United States, Japdn and several European countries: Austria, Belgium, Denmark, France, Germany, Great Britain, Hungary, Italy, Luxem- bourg, the Netherlands, Norway, Portugal, Romania, Switzerland and Yugo- slavia. The protocol provided that the Convention was to he ratified hy Poland and Czechoslovakia hefore May 31, 1930,in order to hecome binding upon al1the signatories. An extension of this time-limit until June 20, 1930,in respect of Poland, and until June 26, 1930, in respect of Crechoslovakia, was agreed to by the contracting parties. Czechoslovakia deposited a conditional instrument of ratification on June 25, 1930, with a declaration that its willingness to hecome a party would depend upon the ratification of the Convention hy Poland. Poland announced on June 19, 1930, that it was obliged to postpone its ratification. This caused the Governments of Austria, Belgium, Hungary, Italy, Luxembourg, Romania and Switzerland to announce that as from July 1, 1930,they would cease to consider themselves bound hy the Convention, since the conditions on which they had been willing to accede to it had not heen fulfilled. By the tems of the protocol, DOCUME~TS SUBMI~D BY THE UNITED STA~ 385 the Governments of Denmark, France, Romania and Yugoslavia then ceased to be bound bv the Convention, as from July 1, 1930.On June 30 Denmark waived the conditions which it had stipulated in-regard to the ratification of Gemany. Therefore the only countries remaining bound by the Convention on July 1, 1930,were the United States, Denmark, Great Britain, Japan, the Netherlands, Norway and Portugal. Under the terms of Article 6 of the protocol, the United States, Denmark, Great Britain and Nonvay al1announced their withdrawals as of June 30, 1933. Portugal had withdrawn as of June 30, 1931,and the Netherlands as of June 30. 1934. The American Minister 10 Switzerland, Mr. Hugh R. Wilson, on June 20, 1933, prmntcd the following note to the Secretary-General of the League of Nations: "ln accordance with Paragraph 6 of the Protocol of December 20, 1929, to the International Convention for the Abolition of Import and Export Prohibitions and Restrictions, the Acting Secretary of State of the United States of America hereby gives notice of the American Government's withdrawal from this convention effective June 30, 1933. It is with great reluctance that the American Government has been forced to take rhis action. It had been hoped that the principle embodied in this convention would be widely accepted by the nations of the world. The reverse of this has, however, been true, and the withdrawal from the convention of other nations which had adhered leads to the conclusion that the existing conven- tion may not be fully adapted to present economic and commercial con- ditions. In taking this present coursc it is the Amencan Government's hope that there may result from the labors of the Monetary and Economic Conference now sitting al London a convention of this nature which will be widelyadopted and adhered Io hy the nations of the world." (Dept. of State Press Release,July 5, 1933; US Archives, 740431, 59-78-28,Box 37.) Once again, there was no violation of the treaty, no suhsequent conflicting statute or treaty, and impossihility was not a Factor. 1933 - RooseveltNoticeof TerminotionqflY31 Exiradifion Treaty wifhGreece Later in the same year, 1933,the Executivewithout consultation with Congress or the Senate, gave notice of intent to terminate the extradition treaty with Greece signed on May 6, 1931,which contained provision for termination on one-year's noticeafter it had been in etiect fiveyears. (47 Stat. 2185.)The notice was occasioned by a dispute with Greece arising from the latter's refusal to surrender an individual accused of fraud. The United States believedthat Greece was violating the treaty. The notice was givenonNovember 6, 1933,and theearliestpossibletermination date was November 1, 1937.The United States withdrew ils notice of tcrmination on September 29, 1937,after the United States and Greece sirned a rotoc co lf interpretation of the article of the treaty that had given r70ethe dispute and the notice of tcrmination. It has been asserted that the notice was premised on the treaty already having been voided by Greece's violation. In fact the treaty was never voided, and re- mained in full force and effect between the oarties throuehout this oeriod. The treaty remains in full force and effect to tRis day. (47 ftat. 2185;'TS 855; 8 Bevans 353; 138LNTS 293.) It is true that the US notice of termination charges Greece with violating the 1931trcaty, and that the notice of termination was given for that reason. This386 MILITARYAND PARAMILITARYACTIVITIES case stands as the only instance of notice of termination given because of viol- ation. But the question remains whether this case is an exception to a purported rule requiring Senate or Congressional approval for termination by notice, or simply an application of the rule permitting a Presidential termination notice without Congressional approval. Under customary international law, as emhodied in the Vienna Convention on the Law of Treaties, a material breach of a bilateral treaty by one of the parties entitles the other to invoke the hreach as a ground for terminating the treaty in whole or in part. Under customary law, there was no precise lime prescribed for the notice of termination in such cases. Under the Vienna Convention rule, a notice of three months is required. (Vienna Conven- tion, Articles 60 and 65.) If the United States had been operating in 1933 under the customary material breach rule, it could haveterminated the extradition treaty with Greece at once by invoking the alleged breach and without having to give a notice which would keepthe treaty in force for almost four years. Even the Vienna Convention rule, as noted, would have required only three months' notice. It is generally accepted that the President may act unilaterally in giving a notice of termination if the other party breaches the treaty. Yet the Senate or the Congress could be requested to approve a notice given in such cases. It might be thought that pursuant to an approach requiring legislativeapproval, violation would make no legal difierence. The President could make a finding of violation, but still requirc approval to give the notice. On the other band, if the argument is simply that practice has created an exception to the rule contended for, then practice must he a legally relevant consideration. If that isso, however thehulk of modern practice clearlyestahlishes the right of the President to terminate hy notice pursuant to a notice provision without legislativeapproval, whether or not there has been a violation. In only one of the 12cases of such termination has the United States alleged violation hy the other party. In Ourjudgment, the 1933notice was not an exception to a rule under which legislative approval is required for notice even under a notice provision, but rather was an application of the rule that a President may give such notice on his own initiative. 1936 - RuosevelrTerminaiionofthe 1871CommercialTreatyluithllaly In 1936President Roosevelt approved the proposal of the Department of State to give notice to ltaly of intent Io terminate the 1871 commercial treaty with Italy (9 Bevans 82) without seeking the prior or suhsequent approval of the Senate or the Congress. Article XXV of the treaty contained a provision for notification ofintent to terminate. On December 15, 1936,the American Amhas- sador to ltaly and the Italian Minister of Foreign Afiairs signed a protocol announcing the intention of each Government Io terminate the treaty, the protocol being deemed the notice required under the treaty. (Sec Hackworth, Digest oflnrernolinnalLaw, Vol.V, pp. 330-331.) It bas been argued that the 1871 tredty would limit the President's ability to carry out the Trade Agreements Act of June 1934, and that the treaty was inconsistent with orevailine lenislation. Iirhuuld he nokd that ;he~lcgislaiiun referred io did no1 nesessarily override or c~~nllictuiih ihe e~rlier treat). The Tradï Agreenients Act of June 12. 1934. provided thai the Prcbidcnt IIIU)surpend ihc a~pliiaiioii of ihc diiticr and oihcr Înodifications of import restrictions-proclaimed in trade agreements to articles WCUMENTS SUBMITTED BK THE UNITED STATES 387 from any country hecause of its discriminatory treatment of Amencan commerce or hecause of other acts tendine to defeat the nrincinal ourooses of the Act. The Department of State felt that fialy's trade control measurcs were prejudicial to American commerce. Since the suspension of the application of the henefits of trade aereements to ltalian eoods would have exnosed the United States to a - charge oi'viol~iici chritd rulc rcriuirinc Iecirl~iiic iio~rtiiil for noliccof ir'ut, terminitions has not heen estahlishëd in Our ~ohStitutiona1 law and practicé. The 1936 termination of the 1871 commercial treaty with ltaly stands as one more application of the estahlished rule that the President may givenotice of termination of a treaty pursuant to a notice provision with or without the prier or suhsequent approval of the Senate or the Congress. 1939 - RooreveliNoriceof Terminaiionofihe 1911CommercialTrearyivirh Jupu~t On July 26, 1939, Secretary of State Hull wrote to the Japanese Ambassa- dor to the United States giving notice of the intention of the United States to terminate the 1911 commercial treaty with Japan. (9 Hevans 416.) The treaty provided for termination upon six-months' notice. Resolutions were introduced in the Senate on July 18, 1939,and in the House on the following day to the eiïect that itwÿs the sense of each House respectively that the United States should give the notice required by the treaty. Neither resolution purported to authorize or direct the President in the matter. Before either House had acted, Secretary Hull gave the notice. It has been maintained that Senator Schwellenback felt that the President was "compelled" to denounce the 1911Treaty with Japan because of US obligations under the 1922 Nine-Power treaty. In fact, there is nothing in the Nine-Power treaty (44 Stat. 2113; TS 723) that required the United States to terminate the 1911commercial treaty with Japan. The Nine-Power treaty committed the United States, Japan and others to respect the territorial integrity of China,ut Japan's invasion of China in 1939 did not legally require the termination of the 1911 treaty, which was entirelycommercial in nature. Nor did the actual notice of termination giveany indication thatOurobligations unde the Nine-Power treaty necessitated the termination of the 1911treaty. Had the United States been legally required to terminate the 1911 treaty, it might be expected that the notice of termination would have at least alluded to such requirement. The US notice states that the 1911treaty388 MlLlTARY AND PARAMILITARY ACTIVITIES "contains provisions which need new consideration. Toward preparing the way for such consideration and with a view to hetter safeguarding and promoting American interests as new developments may require, the --ver-ment of the United States. actine in accordance with the orocedure prescribed in Article XVll of the treaty inder reference, gives notke hereby of its desire that this treaty be terminated, and, having thus given notice, will expect the treaty, together with its ac~ompan~in~~~rotocd,to expire six months from this date." (See Hackworth, Diyesl oflnrernarional Law, Vol. V, pp. 331-332; US Archives, 74D431.) S~ ~~ ~ ~chwellenback did not areue that the United States was comoelled to denounce the 1911treït) because of;>ur ubligïiiunr undcr the ~inc-Po&r treaty or Corany uther rednun Senaior Sch~cllenhack had introduç~d a )oint rchulution. which hébelieved was made necessary by the Nine-Power agreement, preventing the export from the United States of al1goods and materials, except agricultural products, "which there is reason to believewill, if exported, be used, directly or indi- rectly, in violaiion of the sovereignty, or the independence, or the territo- rial or administrative integrity of any nation whose sovereignty, indepen- dence. and territorial and administrative integrity the United States isobliga- ted hy treaty to respect". (Cong Recd, Vol.84, Pt. 10,76th Cong., 1stSess., p. 10783.) Senator Schwellenback's only argument with respect to the 1911 treaty with Japan was that his proposed resolution was not inconsistent with that treaty and that notice was therefore unnecessary; if the 1911 treaty was thought to be a problem, however, he would not be "critical" of those who thought the 1911 treaty should be terminated hy notice. He did not argue that the United States was compelled 10denounce the 1911 treaty. Senator Schwellenback said: "Mr. President, 1do not agree tbat the 1911treaty should have prevented our Government from adopting the joint resolution which 1 introduced. I concede, however, that like al1 legal questions about which there is an argument, there can be an argument about that question. Under those circumstances 1certainly am in no way critical of the Members of this body who contended that hefore we took further action the 6-months' notice should he given Japan. In matters of this kind, in which we base our position upon a treaty, certainly we must be punctilious. 1 do not think there was any necessity for our recognizing the 1911 treaty as an obstacle to the proposed action. However, as 1 Say, 1am not arguing that point with a view of arguing that myjoint resolution ... should be adopted during this session of the Congress." (Ibid, p. 10785.) It was also clear from other Department of State documents at the time that the Administration believed that it had discretion to give the notice. There was no indication that the Executive Branch felt legally compelled to give the notice by the temis of the 1922Nine-Power treaty. On July 21, 1939, fivedays hefore the notice was given, and while the Senate resolution was pending, Secretary Hull wrote to Senator Pittman as follows: "Notwithstanding the authority which is vested in the Executive in regard to the matters mentioned in the resolution, 1 am glad to Say that the Executive is always pleased to have advice from the Senate and to give such advice full and careful consideration consonant with the great weight to WCUMENTS SUBMIITED BY THE UNITED STATIS 389 which the opinions of the Senate are entitled." (Quoted in Hackworth, op. cil., p. 332.) Afier the notice of termination was given by the Executive, the Department of State replied as follows to inquiries regarding the President's powerto give such notice without the approval of the Senate: ". .. the power to denounce a treaty inheres in the President of the United States in his capacity as Chier Executive of a sovereign State. This capacity, as you are aware, is inherent in the sovereign quality of the Government, and carries with it full control over the foreign relations of the nation, except as specificallylimited hy the Constitution. Without entering into a lengthy discussion of the general and specific arguments leading to this conclusion, it will perhaps be sulficientto quote the conclusion of Professor Willoue-bv 2~onstUuiional Lnw of the UnitedStares. 2nd ed...1... 585): '11 would seem, indeed,that there isno constitutional obÏigation upon thipart of the Executive to submit his treaty denunciations to the Congress for its ap~roval and ratification. althoueh.-as has been seen. this kas 6een several times done.' The author questions even the power of Congress, by joint resolution or othenvise, to direct the President to denounce a treaty, though such directions also have been eiven. and in some instances followed.thoueh in oihcrs ihe dire'.'ilha., CL.;SUCCCSS~rU cfIsnl (staicmcnt iiued hy Xc Sccrei;ir) of S13ic.Scpicmber 25. 1920).Thir conclusion uould secni IO bc entirely in accord with the general spirit of the interpretation of the Constitution in this reeard bv the Suoreme Court of the United States as indicated, for instance,-by thécase of United Srares v. Curriss-Wrighf,299 US, p.304." (Ibid, pp. 331-332.) The 1939termination of the 1911commercial treaty with Japan is still another case of Presidential notice pursuant to a notice provision without violation by the other party, and without any conflicting statute or treaty. lmpossihility of performance was not a relevant factor. 1944 - RoosevelrNoticeof Terminationof Prolocol io 1929Inter-American Convenrionfor TradeMark and CommercialProieciion On September 29, 1944,the United States gave notice of denunciation of the Protocol accompanying the General Inter-American Convention for Trademark and Commercial Protection of 1929. Provision was made in the Protocol for denunciation on one year's notice.(2 Bevans 751 ; TS 833.) The Protocol pro- vided for the registration of trademarks in an Inter-American Trademark Bureau at Havana, Cuba. The notice of denunciation stated that as the result of the experience of the past several years, the US Government had concluded thai the Trademark Bureau and Protocol had failed lo serve any purpose which would adequately justify the annual quota of funds contributed by the United States to the Bureau. There wds no prior or subsequent communication with the Senate or Congress. The Protocol ceased to be in force for the United States on September 29, 1945. (State Dept. Doc. 71O.D4/7-1844,Sept. 29, 1944.) In a letter dated Septemher 29, 1944,to certain US diplomatic officersin the American Repuhlics, Secretary of State Hull said that the US Government had decided to denounce the Protocol "in viewof past ineiïectivenessand absence of any evidence of future increased activity". (State Dept. Doc. 71O.D4/9-2944, Sept. 29, 1944.)390 MlLlTARY AND PARAMILITARYACnVlTlES The treaty could have been carried out; there was no violation;and there was no suhsequent inconsistent statute or treaty. 1948 - TrumanNoticeof Wiihdrawu//rom1937 WhalingConvention On December 30, 1948,the United States gave notice of withdrawal from the 1937multilateral convention for the regulation of whaling. (3 Bevans 455.)The notice cited a general understanding at the 1946whaling conferencethat the new convention (62 Stat. 1716; TIAS 1849;4 Bevans 248) would completely replace the old agreement and protocol, and that there was an informal understanding bv the deleaates to the 1946conference that after the 1946convention entered inlo li~riethc contraciing p3r11cs IO the carlirr convention u,ould uithdraw ihcrc- from Neithcr thc Scnatc nor the Conyress uas conïulicd in thc niiiitcr. Despite the fact that the 1946conveniion constituted a com~rehensivesvstem for théreaulation of whaline. and thus re~laced the 1937conGenti~n.i~ ~~~~~,~ ~~ ~ ~ ~ ~ ~ result in ÜS termination of-the 1931conLention on the same suhject (49 Stat. 3079; TS 880; 3 Bevans 26) and that convention remains in force to this day. TradeAgreementsExtension Actof1951 One of the few Congressional enactmcnts during the las1fifty years requiring the President to terminate a treaty came in the Trade Agreements Extension Act of 1951.(65 Stat. 72.)That Act provided that as soon as practicahle the President should take the necessary action to deny the henefits of trade agreement con- cessions to im~orts from the Soviet Union and other communist countr~ ~~~~~~~~~~-~~ ~ ~ ~ commercial tréatieswith Hungary (8 Bevans Il 17)and Poland (1l Bevans237) respectivelyprovided for most-favored-nation treatment in customs matters. Both treaties provided for termination on notice, one year in the case of Hungary, and six months for Poland. Accordingly, on July 5, 1951, the Department of State addressed a note to each Govemment proposing modification of the treaty by termination of the most-favored-nation articles,and giving the required notice that if this proposal was no1 acceptable the treaty as a whole would terminate within the prescribed time. (Dept.of State Press Release597,July 6, 1951.)Since neither Govemment agreed to the proposed modification, the treaties terminated at the end of the prescrihed time period. 1952 - Truman Noticeof Terminationof1929Convenrion onSafetyofLife ut Seri Another case in which a suhsequent treaty led to a Presidential notice of termination of an earlier treaty wasthe 1952termination of the 1929Convention on Safety of Life at Sea. (2 Bevans 782.)Article 66 of the 1929 Convention provided that it might he denounced within five years after its entry into force by a one-year notice. The preamble to the 1948 Convention on the same suhject recited that promotion of safety of lifeat sea "may he best achievedhy the conclusion of a Convention to replace" the 1929 Convention. (TIAS 2495; 3 UST 3450.) The 1948 Convention entercd into force on November 19, 1952. The notice of denunciation of the 1929 Convention was given hy the United States on the same day without further reference to the Senate or the Congress. Similarly, on May 26, 1965,the United States gave notice ofdenunciation of the 1948Convention, pursuant to Article XII of that Convention, because it had becn supplanted hy the 1960Convention for Safety of Life at Sea. (TIAS 5780; DOCUMENTS SUBMITED BY THE UNITED STATES 391 16 UST 185.)The 1960Convention entered into force for the United States on May 26, 1965. 1954 - ENënhoiver Notice of Withdrawalfrom 1923Convention On May 24, 1954,the United States gave notice of withdrawal from the 1923 Convention on Uniformity of Nomenclature for the Classificationof Merchandise (TS 754; 33 LNTS 81). The Convention contained a provision for withdrawal on one-year's notice.The US notice was given without the prior or subsequent -~=.oval of the Senate or Conere-s~ The withd~ ~ ~ ~ ~ ~eKectfor the United States on May 24, 1955. It has been asserted that a fundamental change in circumstances resulting in imvossibilitv of oerformance was invoked bv the United States in announcine its'uiihdra~al &III the Cni>mic Ilnion. the Uniieil Kingdom. I'r.incc;inJ ihc ïicthcrlands werc also icriiiinaicd .IIthc saint cime tScc. er.. 13 LIST 17h6.ihc 1962terminati.~ns,l'r.;irliertr;iJc agreements with the unitid Kingdom.) The President'saction in giving noticeof termination of the 1902commercial treaty with Cuba was thus taken in a hroader coniext than punitive measures against Cuha. While it is not possible to prove the point, the termination would prohahly have taken place even had relations with Cuha heen friendly. Put most accurately, the GATT was a suhsequent executiveagreement, which, along with the executive agreement of Octoher 30, 1947,effectivelyand legally suspended the operation of the 1902 commercial treaty with Cuba. The final termination of the 1902 treaty was consistent with Congressional enactments, but was not required hy them. We have found no evidence that the Congress or Senate addressed the issue or thought al al1about authorizing or directing the President to terminate the 1902treaty. The termination of that treaty was part of a larger program of terminating certain commercial agreements, even with friendlygovernments,as part of the GATT process,by means of Executiveaction. 1965-Johnson Noticeof Terminrilionof the WorsawConvenlirm On Novemher 15, 1965,the United States gave notice of denunciation of the 1929Convention for the Unification ofCertain Rules relating to International DOCUMENTS SUBMITTEUBY THE UNITED STATF5 393 Transportation by Air and the Additional Prolocol relaling thereto, known as the Warsaw Convention. (49 Stat. 3000; TS 876; 2 Bevans 983.)The notice was given pursuant to a six-rnonths notice provision contained in Article 39 of the Convention. The notification was withdrawn on May 14, 1966,just one day berore the six-rnonths notice period would have espired. The President's noticeof termination. .s~well~ar~~.e withdrawal of the notice. did no1rcceivcany prior tirsuhsc~ucntapprobal frorn the Scnaic or ihr Congrcss. Therc U12F no \~ioI~lionor thc cont,cnlion, no subicqucnt inconsilcnl stÿiuic or treaty, and impossibility of performance was not afactor. The sole reason for giving the notice of termination, as exprcssed in tlie officialUS notice, was "the low lirnits of liability for death or personal injury" provided in the Convention. (Depl. of State Press Rclease No. 268. Nov. 15. 1965.) 1l'cdring;wcrc helil on ihc miitcr hy the Scnaic I'orcign Kcl~iioni Cnmrniriee. bu1 al no tinic 414 the manner 01wiihdrdiral bcc~nic an ii\uc. Slany u,itnorer at the hearings, including attorneys, professors, deans and representatives of lawyers' associations, testified in favor of US withdrawal frorn the Convention, but il was not suggested that this could be done only with the approval of the Senate or the Congress. The Senate Foreign Relations Cornmittee itself recornmended notice of with- drawal. but did not sueee-- that the President's notice reouired the orior or iuhrequent appro\;il OCthe Scn;iicsr Congresi The C<~rnrnittcc ssiJ ihiii unles, a ri~rnp1rmeni:ir)in\i~r;inccprograin u,is cn.izicd wiihin:Irai>on;ihlr.iinic (which ii1c;lntprix Io the iidjiiurnment <>ihc 89th Congrcss). 'the I>epirinicni iiiState ;ha~ultliake irnmcdi.itc,teps to Jcnouncc the \Y~rsiwCiini.enii,>nanJ ihe Il:igiic Prolocol" (S I:\ci Kcpi Nt,.3, %)thCong.. Isi Scsr. iipp p 7 1Ni)action &as taken by the Senate or Congress, and theÏe were no contentions, as Caras we have been able to determine, in the Senate or the Congress that the President alone could no1 give the notice of denunciation without Senate or Congressional approval. There was one interchange at the Foreign Relations Cornmittee heanngs (between Senator Carlson and a witnesswho favored denunciation) on the rncthod of givingnotice : SenatorCarlson: Mr. Speiser,you suggestthat wedenounce. ..the Warsaw Convention. Mr Speiser: Yes. SenarorCarlson: That gets to be an Executive act, 1think, and only the President can do that. isn'tthat correct? Mr. Speiser: 1havediscussedthiswith theState Department and apparently the United States has denounced treaties in Iwo ways, either hy the President alone and the Senate. Sti<.»ulJ dr\ume thai thc Scnatc, oi course. coulJ aJ\i,e the Prcsidcnt b) rcsolution \\'c pri~hahlycould cul ,~Il'iiiiids;inJ uc prohahly hd\c othcr rneth\>Js.hui wrsoiially. I~oiild IcclihliIIuiiuld bean C~ccuti\c act. (Heurings on ihe Hague ~roiocol IO rhe Warsaw Conventio nefore the Senate Committee on Foreign Relations, 89th Cong., 1st Sess., 1965, Pt. 2, p. 42.) In fact on May 3, 1966, whenit was known that the Department of State might withdraw its notice of denunciation. a resolution (S. Res. 256. 89th Cone.) was introduced requesiing lhat the notice not be wiibdrnwn until fkl public hG&ings were held. The original sponsors of the resolution were Senators Nelson, Hartke,Kennedy of New York, Montoya and Yarhorough. While the resolution was sponsored hy 29 Senators, the Administration withdrew the notice hefore the Senate took action on the resolution. In hrief,there was no indication from the Senate,includingthe Foreign Relations Committee, or from the House, that the President could not give the notice without Senate or Cone-essional a~..oval. As noted. there was no treatv,vio~ati~.. ni>suhwqucnt inconsistcnt statute or trcaty. and inipossibility \ras not 3 Cacior. ïhc si~ndb 3s 3 cle~rc~împle of Prcsidcniial notiw oi tcrminlrtion without Senate or Congressional approval, and without Senate or Congressional objection. 1975 - Ford Notice oj Withdruwalfrom the lnlernarionul Lubor Organisarion On Novemher 5, 1975, Secretary of State Kissinger gave notice of intention to terminate United States memhership in the International Labor Organisa- tion. The notice hccame effective,pursuant to the provisions of Article 1 (5) of the IL0 Constitution, two years later. The Carter Administration affirmed the withdrawal, did not extend the two-year lime period aftkr considering that step, and thus withdrew the United States from the IL0 in Novemher 1977. There was no prior or suhsequent approval hy the Senate or the Congress. The United States membership in the IL0 was no1 authorized hy treaty, but rather hy a joint resolution of Congress approved hy the President on June 19, 1934. (S.J. Res. 131, Public Res. 43, 73d Cong.) Nevertheless US adherence to the IL0 Constitution constituted an extremelv imoortant international oblieation which included memhcrship in an international'organization. Yet termination was accomplished without Congressional approval, and as far as we have heen able to determine, the issue of Congressional approval was not raised in either House of the Congress, despite the fact that a number of memhers of the Senate and House did not favor US withdrawal from the ILO. 1976 - TheFishery Conseri.arionund Management Aci The most recent treaty terminations hy the United States have been pursu- an1 Io the Fishery Conservation and Management Act of 1976. (P.L. 94-265.) Section 202 (b) of the Act provides that "il is the sense of the Congress" that the United States shall withdraw from any treaty that is not renegotiated within a reasonable time so as to conform with the purposes, policy and provisions of the Act. Pursuant to this provision, the United States gave notice of intention to withdraw from the 1949 International Convention for the Northwest Atlantic Fisheries (TIAS 2089; 1 UST 477) on June 22, 1976, effectiveDecember 31, 1976.The United States also gave notice of termination of the 1953convention with Canada for the preservation of the halihut fishery of the Northern Pacific Ocean and Bering Sca (TIAS 2900; 5 UST 5) on April 1, 1977,effective April 1, 1979; and the 1952convention for the high seas fisheriesof the North Pacific Ocean (TIAS 2786; 4 UST380) on Fehruary 10,1977, effectiveFehruary 10,1978. DOCUMENTSSUBMITTED BY THE UNITED STATES 395 22. STATEMEN OTF ABRAM CHAYESH , ARVARD UNIVERSITC YA, MBRIDGE M,ASSA- CHUSSE'ITT S,ATYTERMINATIOH NE,ARINGB SEFOR EHliC~~Ml'lTliliN FOR~~IGN RELATIONS U,NITEDSTATES SENATEN , INETY-SIXTC HONGRESSF,IRSTSESSION, 9, 10ANU Il APRIL1979,PP.306-312 Mr. CHAYES T.hank you, Mr. Chairman and Senator Javits. 1 am going to compress my prepared statement somewhat. 1 hope il can appear in full in the record. ScnrZORI~SKY 1.$1.1appc;ir ii11,cntirety in the record. Mr. CII.\YI:SI..irst, ICIme it Ia plr~~ureand honor to be tciiifying ayin hcl;>rethc Commiticc I an1glsd thal ihc Committcc irçunducting this inquiry. II is impurtant Irrecxsmine re;ci\cd u.isdom from iimc tiitimr tu ,cc hou II with,iunds ttic inipdct sf 2h;ingcd ~~ircumstanîcrand ncv, thinking. TERMINATION OF TREATIES MATTER OF PRBSIDENTIAL POWËR As legal adviser, 1 accepted, and as professorI taught the received wisdom that the determination of trcaties was a matter of Presidential power. But 1mus1 confess that 1 did so primarily on the basis of the conclusions of text writcrs, without mvself makine an indeoendent examination of the underlvine materials. 1have now made a more careful review of those materials in preparation for thisteslimony. 1 am glad tu say that 1have not been seriously misleading the young. In paÏticular, 1 conclude that, as a general matter and particularly as to the mutual defense treaty with the Republic of China, the Prcsident has authority to give effective noticeof termination in accordance with the terms oftreaty. But the situation is somewhat more complicated than 1had supposed. And per- haps it would be helpful to go through my thinking about il. TERMINATION OF TRBATY IN ACCORDANCE WlTH TERMS First, let me say 1am not valkingabout the whole range of questions that the committee is inquiring into. The staff asked me to focus my remarks on ter- mination of treaties, and 1am narrowing ir somewhat further to termination of a treaty in accordance with its own terms. Second, let me Say 1don't believe the courts are going to be very much help to us in this matter. There have onlv heen a fcw cases in our historv that even remotely bear on the question of te&ination, and they don't answe;any of the important questions. And 1 don't think that Senator Goldwater and his coplaintiffs are goinr to . - change that very much. Third, two centuries of practice have provided something less than decisive illumination on this problem. In the first place, there is not al1that much practice. There are lessthan 30 instances of treaty termination in our history. And on the whole, with the exception of the treaties of alliance with France and with one or two others,these instances have not involved major political treaties or even, for the most part, significant foreign policy issues. So that althourh auestions of institutional Dowerhave sometimcs been touched on, they have neverbeen focused and conteskd sharply. 1don't think much would be gained hy my reviewingthese 25 or 30 historical cases once again. 1have not made an independent investigation of the original396 MlLlTAKY AND PARAMILITARYACTIVITIES materials, but it isclear fromthe secondary accounts that al1of them are complex enough to sustain differing interpretations. NO UNIFORM PRACTICE To my mind, the most important thing that a review of the practice reveals is that there has been no unifonn practice. The record shows al1 sorts of comhi- nations and permutations of Presidential and congressional action, and it shows some instances of action hy the President alone. In al1 of these cases and whatever the form chosen, the action has heen regarded as effective hy our treaty partners, by the Executive hranch, hy the Congress so far as it appears, and in the few peripheral instances already referred to, Mr. Chairman, hy the courts. 1s there anything in the language and structure of the Constitution that con- tradicts the catholicity of this conclusion? Not that 1can find. The kev,au.stion here. 1take it. is whether the President can act on his own . - ~ ~ in the first instance to give notice of termination without securing some form of Congressional approval in advance. 1put aside, once more. the issue of what he could do in the fice of contrary ~ongkssional action SYSTEM OF CHECKS AND BALANCES We know that there are checks and balances - divided power - in the Constitutional scheme both as to domestic and foreign affairs. But it is also tme that the initiative is differently allocated as to each. Congress makes the laws, subject to Presidential veto. But the President makes treaties, subject to the concurrence of two-thirds of the Senate. This basic distinction is backed up in many ways. The President receives ambassadors, and thus determines what countries and régimesthe United States recognizes. On a whole range of suhjects,the President can make agreements without formal Congressional participation, and so on. These arrangementsare thought to reflectthe superior availability of information to the Executive and the need for unitv. disoatch and flexibilitv in the condiict 2 , . of foreign affairs. Congress, of course, has its balancing power. In addition to the advice and consent of the Senate in the case of treaties, there is often the need for imple- menting legislation, and, increasingly in these days, appropriations to carry out foreign engagements undertaken by the President. But these are essentially negative, revisory powers. They provide a check, but they leave the initiative with the Pres~ ~~~. The structure of the overall distribution of the foreign affairs powers, then, seems, at least on first appraisal, to argue for the existence of an independent Presidential initiative in tieaty terminatron. As Professor Oliver just pointed out, it is hard to say; and as.Professor Lowenfeld has pointed out, it is hard to say just what form of Congressional concurrence would he required. Some have said that the authorization might come hy a majority vote of both Houses of Congress, as with the repeal of ordinary legislation. But, although a treaty, likea statute, is the supreme law of the land, it hecomes so not bv enactment of Conmess but hv the President's act of ratification. after thn, ii ihc~IiI hr.froni :iditiercni lep,irlüii\e organ than is required for making a treaty. UOCUMEh7S SUBMIlTED BY THE UNITED STATES 397 TERMINATION BY TWO-TtlIRDS VOTE Sen~torial plirtisJns argue Varconcurrence by two-ihiril. ,>ithe Srnate. jus1as uiih ad\,icc 2nd c~insciiito trcatics. 1hxi .;ounJcd iirin:itiitoime uhen 1tirs1 heard it, and it sounds only slightly less so now, after I've thought about it for a while. If we think about the purpose of extraordinary majority requirements, we find thcy are most often used to insure circumspection, caution, and broad consensus in undertaking serious and extraordinary engagements. This bas led some to suggest that the framers stipulated for advice and consent of the Senate for treaty making but not terrnination, because they fear getting into entangling alliances but not getting out of them. Senator JAVITSI.f 1may appeal to the Chair, 1have been called to the Roor, and, if you will excuse me, 1have to leave, but 1do have a monitor here so that 1can be kept abreast of what you are saying. 1oRer my humble apologies. Mr. CHAYI~T Sh.ank you. You have heen very attentive and interesting in your own comments, Senator. As 1 said, 1think the argument that the Framers were worried about getting into entangling alliances but not getting out of them a bit too easy. We are increasingly aware that the diiierences hetween commission and omis- sion may not be as great as once it was thought. In many cases, and the Presi- dent is one, termination of a treaty may involve as serious, as extraordinary, and as fundamental a shift in foreign policyas the conclusion of an alliance. In the las1analysis, 1reject the notion of Senate concurrence by a Iwo-thirds vote because the requirement of action hy an extraordinary majority means the possibility of vetohy a minority, acting against the will of the majority. That is a sufficient departure from Our usual way of doing things that, in my view, it should not be expanded beyond the cases where it is expressly specified. It is worth looking at the cornizant areas of war uowers where the Constitutional position-of ~ongress-is a good deal ~tron~er'than as to foreign affairs ingeneral; there, a decade of debate has failedto resolvethe Constitutional issue in favor of a requirement of advance approval hy Congress. The preseni consultative proccdures are defined not hy the Constitution, but by the War Powers Resolution, and even that does not require affirmative concurrence by Congress in every case within its purview. The exercise of the war oower seems IO me a stronr-r case for advance Con- grc\sional ~pprovnl ihiin treaiy tcrminlition. The Preiipridurc impiisschui 16)prohide edch br;inch uith the Ici,cragencL.cs,ar) fur ihe practical accommodation of interests that is the essence of democratic iovernment. That is in fact what has haooened with the treatv termination oroceis. That is the real m&ning of the confusi& and varied ÿpractice" in this area. In every case, a way has been round to associate hoth the executiveand le-slative branches with sig$ficant acts of treaty termination. The cases of mixed termination action, whether the President or Congress moved first, werejus1 such demonstrations of unity through concurrence. And if the truth be told, the cases cited asxamoles of the President actine alone are reiilly rxïmplrs if Cungressionïl ïcquicscence, noi Prrridcniial ïsscrtionj of pouer made good ovcr Congrersional rcsistïnce Thai is ar it rhould he 'CheConsiiiurion is "an inrirumeni i>fco\c-nnieni desiened to endure for aees". 1End it hard to make Thekind of categorical assertions about the powers that il grants that some of my colleagues bave. It mus1necessarily leavea goo. deal of room for play in the joints. On issues of this kind, what is important is not so much the precise legal distribution of power as the practiçal and effectivedistribution of power. In the matter of treaty termination, as in so much else, the Constitution hds provided ample opportunity for both branches to excrt effective influence over the policy process. Thank you. [Mr. Chayes prepared statement follows:] Mr. Chairman, members of the Committee. My name is Abram Chayes. 1am a professor at the Harvard Law School, where 1 teach, among other things, international law. From 1961to 1964,1was the LegalAdviser of the Department of State. It isa oleasure and an honor to he tes.if--np.aaain hcfore this Committee. I am glad that the Committee is conducting this inquiry. It is important to reexamine received wisdomfrom lime to lime to seehow it withstands the impact of changed circumstances and new thinking. As Legal Adviser 1 accepted and as professor 1 taught the received wisdom that the termination of treaties was a matter of Presidential power. But 1must confess that 1 did so primarily on the basis of the conclusions of tex1 writers, without myself making an independent examination of the underlying materials. 1have now made a more careful review of those materials in preparation for this testimony. 1 am glad to Say that 1 have not been seriously misleading the Young. In particular, 1 conclude that, as a general matter and particularly as to the Mutual Defense Treaty with the Republic of China, the President has DOCUMENTSSUBMlTtED BY THE UNITED STATES 399 authority to give effectivenotice of termination in accordance with the terms of the Treatv. But the situation is somewhat more comnlicated than 1had suon..ed. And perhaps it would be helpful to go through mithinking about it. Let me establish some propositions at the outset: First, 1am not talking about abrogation or denunciation, much lessbreach of treaty obligations hy the United States. The issue is the termination of a treaty in accordance wiih its own terms. As for out-and-out abrogation, it appears that this was done only once in our history, in 1798,as to treaties of Fnendship and Alliance with France. It was donc by an Act of Congress, signed by President Adams, and regarded by al1 parties, including the courts, as tantamount tu a declaration of war. As Io hreach of a treaty, it is not the United States Con- stitution, but the other treaty partner that determines what acts of what official organs it will regard as a hreach. But termination in accordance with the terms of the treaty accounts for most of the historical instances cited hv hoth sides in this debate. Most modern treaties contain such provisions, in contrast to those of a century ago, which did not. This contemporary practice reflects the experience of countries that conditions change, not even-the most far-seeing statcsman can anticipate the course of events, and in any case, a treaty that doesn't emhody a fair accommodation of the interests of the parties as currently perceived is not worth much. Second, the courts are not going to be much help in resolving this issue. In 200vears onlv the harest handful of cases have touched on the oroblem of treatv term'ination and then only in the most peripheral and elliptical way. Politictl treaties, like the Mutual DefenseTreaty with the Republic of China, havesubstan- tially no domestic law impacts, so the chances for court interpretation are not good. My guess is that Senator Goldwater and his CO-plaintifsare not going to change that. Third, Iwo centuries of practice have provided something less than decisive illumination of the nrohlem. In the first,~lac:. as mieht be exoected. there is not al1that much practice. Although there are minor dkrencesaboutwhat count, therc seems to be general agreement that there have been lessthan 30 instances of treaty terminatGn in ou; history. Then, on the whole, with the exception of the treaties with France already mentioned, these instances have not involved major political treaties, or even, for the most pari, significant Foreign policy issues. Primarily, they concem technical and commercial treaties - load line conventions. tarif nomenclature. extradition and the like. As a result. althoueh questions of institutional power'havc sometimes heen touched on, ihey have never been focussed and contested sharply. In particular, what might he thought the hardest, testing questions have simply never arisen: can Congress compel~an unwilling President to give notice of termination. Conversely, can the President persist in a decision to givenotice as acainst a duly enacted legislativecommand to the contrary. 1shall touch on these questions briefly in a moment, but, as we shall see, it scems to me highly unlikcly that they would ever arise as a prac- tical matter. 1 don't think much would be gained by my reviewing the 25-30 historical cases once again. 1 haven't made an independent investigation of the historical materials, and it is apparent from the secondary accounts that al1of them are complex enough to sustain differing interpretations. Proponents of Presidential power stress the more recent penod since World War 1, when the cases thai can fairlv he characterized as actions hv the President alone are concentrated. In a sen&, thai is fair, hecause this is the era in which the United States has been a world power. It has been a time of vast expansion in our treaty relations. In a400 MILITARYAND PARAMILITARYACTIVITIES count wemade for our book about ten years ago, my CO-authorsand 1calculated that from the Declaration of Indenendence to World War 1. the United States became a party to about 700 treaties end other international agreements. In the two interwar decades, the numher was about 600.And since World War II, there have been more than 4,000. All of chese, of course, were no1 treaties in the constitutional sense, but 1 think the proportions are about right. On the other hand, this same recent period is the period of the expansion of presidential power at the expense of Congress, a growth that we are in the process of re-examining and, perhaps, revising. To my mind the most important thing that a review of the practice reveals is that there has been no unifom practice. The record shows al1sorts of combi- nations and permutations of Presidential and Congressional action; and il shows some instances of action by the President alone. In al1these cases, and whatever the form chosen, the action has heen regarded as effective - by our trcaty partners, by the Executivc branch, by the Congress so far as appears, and, in the few p~ripheral instances already referred 10,by the courts. 1s there anything in the language and structure of the Constitution that con- tradicts the catholicity of this conclusion? Not that 1can find. The key ques- tion here, 1 take il, is whether the President can act on his own in the first instance to give notice of termination without securing some form of Congressional approval in advance. 1put aside, once more, the issue of what he could do in the face of contrary Congressional action. We know that there are checks and balances - divided power - in the Constitutional scheme both as to domestic and foreign affairs. But it is also true that the initiative is differently allocated as to each. Congress makes the laws, subject to Presidential veto. But the Prcsident makes treaties, subject 10 the concurrence of Iwo-thirds of the Senate. This basic distinction is backed up in many ways. The President receives ambassadors, and thus determines what countries and régimesthe United States recognizes. On a whole range of subjects ~ ~ - ~--~-nt can make aereements without formal coneressional oarticioation. And so on. These arrangements are thought to reliecl ïhe superio'ravaiiability of information to the Executive and the need for unity, despatch and flexibility in the conduct of foreign affairs. Congress, of course, has its halancing power. In addition to the advice and consent of the Senate in the case of treaties, there is often the need for im- plementing legislation and, increasingly in these days, appropriations to çarry out foreign engagements undertaken by the President. But these are essentially negative, revisory powers. They provide a check, but they leavc the initiative with the President. Congrcss cannot compel him, for example, to negotiate a treatv or even to ratifv once the Senate has aiven ils advice and consent. There is n&hing comparabléto the legislative overfde of a Presidential veto. The structure of the overall distribution of the foreign affairs powers, then, seems, at least on first appraisal, to argue for the existence of an independent Presidential initiative in treatv termination. 1confess 1am fortified in this con- clusion bci;iurr.,35 my fricnd Profcisor Luticnield h:is pointcd oui. ii iharJ to 5s). lusi uhai furni of Caingrc.si,inal concurrencc ii<~ulJ hc rcquireil Soiiic hli\,c said that the authorization might come by a majority vote of both Houses of Congress, as with the repeal of ordinary legislation. But, although a treaty, like a statute, is the supreme law of the land, it becomes so not by enactment of Congress but hy the President's act of ratification, after the advice and consent of the Senate only. It seems anomalous that, if legislativeconcurrence is required for termination, it should be from a different legislative organ than is required for making a treaty. DOCUMENTSSUBMITI'ED BY THE UNITED STATES 401 Senatorial partisans argue for concurrence by two-thirds of the Senate,just as with advice and consent to trcaties. That sounded unnatural to me when 1 first heard it, and it sounds only slightly less so now, after I've thought about it for a while. In the cases after Myers, when it appeared that there were some limits on the removal power, il was never suggested that the President should have power to remove an officer provided the Senate agreed. What was urged was some constraint on th~ ~ ~ ~dent's Dower - not the a~~rrval of the Senate - -~ Congress but a requirement, for example, of just cause for removal to be deter- mined in the first instance by the President, subiect perhaps to court review. If we think about the purpose of extraordinaÏy majorit; requirements, we find they are most often used Io insurc circumspection, caution and broad consensus in undertaking serious and extraordinary engagements. This has led some to suerest that the Framers stipulated for advice and consent ofthe Senate for treatv m&g but not termination, because they fear getting into entangling alliancés but not getting out of them. That is, perhaps, a bit tao easy. We are increasingly aware that the difference between commission and omission is not as greatis may once have been thought. In many cases, and the present is one, the ter- mination of a treaty may involveas serious, as extraordinary and as fundamental a shift in foreign policy as the conclusion of an alliance. In the last analysis,1 reject the notion of Senate concurrence hy a two-thirds vote because the requirement of action by an extraordinary majority means the possihility of veto by a minority, acting against the will of the majority. That is a sufficient departure from our usual way of doing things that, in my view, it should not be expanded beyond the cases where itis expressly specified. These problems with the form of approval, though instructive, could surely be manged if there were some good reason to read the Constitution as containing a reauirement of concurrence in treatv termination. In the coenate area of the war powers, where the Constitutional Position of Congress isa &od deal stronger than as to foreign affairs in general, a decade of debate kas failed to resolve the Constitutional issue in favor of a requirement of advance approval by Congress. The present consultative procedures are defined, not by the Constitution, but by the War Powers Act, and even that does not require affirmative concurrence by Congress in every case within its purview. The erercise of the war power seems to me a stronger case for advance Congressional approval than treaty termination. The President, by deploying troops, can present Congress with an irrevocable fait accompli. By contrast, when the President gives notice of his intention to terminate a treaty there is, in almost every case, a period beforc the termination becomes final in which the Congress can take whatever action it deems neccssary to affect the outcome. That need not take the form of a Congressional "countermand" to the Presidential notice. In this very case of the Mutual DefenseTreaty, Congress has been able to devise and force the President to accept a stronger and much more public commitment to the securityof Taiwan than he seemedat firstto be willingto make. There areother possibilitiesfor legislativeparticipation in the treaty temination process. A stipulation to that efiect in the Senate resolution of advice and consent would, 1believe, be valid. General legislation analogous to the War Powers Act might also he possible, but seems to me uncalled for. Trcaty termination kas not been a serious problem in our history, and experience does no1 suggest it needs or is susceptible to uniform treatment. The kinds of treaties and the kinds and occasions for their modification are too various. The value of flexibility in the termination process is exemplifiedby the Repuhlic of China case, touching, as it does, both the recognition power of the President and his role as Commander- in-Chief.402 MILITARY AND PARAMILITARY ACTIVITII~S Suppose Congress hy resolution should direct the President to withdraw a notice of termination? That iswhat President Roosevelt called an "iffy" question. If the President were to disregard a joint resolution overriding his veto we would clearly he in the midst of a full-scale Constitutional crisis. But it is hard to imaeine anv such case arisine. ~ie conititutional system:f checks and balances was not intended to produce impasse but to provide each branch with the leveraae neccssarv for the vractical ac~ommodatio~ of interests that is the essence of Smocratic government. That is in fact what has happened with the treaty termination process. That is the real meaning of the confusing and varied "practice" in this arca. In every case, a way has been round to associate hoth the executive and legislative branch with significant acts of treaty termination. The eKect of the present arrangements is that a major policy initiative involving termination of treaty cannot take place without the concurrence or acquiescence of both branches. The cases of mixed termination action, whether the President or Congress moved first, were just such demonstrations of unity through concurrence. And if the truth he told, the cases cited as examples of the President acting alone are really examples of Congressional acquiescence,not Presidential assertions of power made good over Congressional resistance. That is as it should be. The Constitution is "an instrument of government designed to endure for ages". As such it mus1 necessarily leave a good deal of room for play in the joints. On issues of this kind, what is important is not so much the precise legal distribution of power as the practical and effective distribution of power. In the matter of treaty termination, as in so much else, the Constitution has provided ample opportunity for both branches to exert effective influenceover the policy process. Senator ZORINSKY T.hank you, Professor. LWCUMENTS SUBMITTED BY THE UNITED STATES 403 Senator ZORINSKT Yh.ank you, Mr. Meeker. 1 would like to cal1on my colleague, Senator Helms, and ask him if he has any questions. Senator HELMSM . I. Chairman, 1 really don't have any questions. 1 want to compliment both gentlemen for excellent statements. CONSTITUTIONAL TWlLlGHT ZOhZ 1judge what both of you are saying is that since the Constitution is silent on the specific issue of treaty termination, that this is really in a constitutional twilight zone? Mr. CHAYES. Well, 1would Saythat. 1 would say that neither the Constitution nor the practice nor the courts nor thejudicial materials give us enough material to make any kind of categorical statement about this. And 1 would say in such a case it seems to me there is likely to be, or 10 be worked out some sharing of power as a practical matter. But 1think the situation is that the President can start the process by giving notice. Then there is a period in al1 of these cases hefore the notice becomes effective. That period gives lime for Congress to do what it Iikes. And in this case, it did alter the significanceof theemination of that trealy quite suhstan- tially in the legislation thdt it passed with respectto Taiwan. Mr. MEEKER1 . would ditïer jus1 a bit.1 think the constitutional power to terminate does reside with the President, but that as a matter of good policy and sound administration he ought to consult with the Congress on an important issue such as this before making a decision. That is not, in my view, a con- stitutional requirement but rather simply sound policy. CONSTITUTIONAL AMENDMENT ON TREATY TERMINATION Senator HELMS . certainly agree, being a cosponsor of the Byrd resolution. Do you think it is a mistake for Congress to consider a Constitutional amendment which would stipulate that there must be a working relationship on such matters? MI. MEEKER1 . think, as Mr. Rogers has said, that this is not a very large practical issue for the United States, and indeed has not been in our history. And it seems to me that the present Constitutional arrangements, though not explicit on this point, are perfectly satislactory, and that Congress and the President can work c~ ~ ~ativelv under~th~ ~ To 11) 10framc 3 Cnnrtilul~~ndl .imcndnir.iion the SL~)CCIcould u,ellproducc conl'ujion or somcthing uorx,. I ui>uld no1 hvor a Conjtitut~onal ~imcndmcni. Ur. ('IIAYI~1Xu..r.>hut ihiit i, a very trchnii:il mdtter. aWC don't ha\c IO rct into thxi At Irasi u.hcrc he would not he chanein.,domestic law in the ordiiarv sense. 1think that the l'rerident ha5brudd powcr ln niake FWCLII\C ilgrcementi w~thoutthe concurrence oilhc Congro,. but Congrcsr can affcxtihsi poiwr bg legirlaiion. Mr Chairman, a> iihüs dune in ihc case of ihc Arm~Conlrol :ind Disarni~mcnt Act Mr. Mee~en. 1would take a somewhat different view, 1think. Congress can ohviously enact legislation overa President's veto Io change do- mestic law so as to supersede an international agreemenl or treaty. But unless it does sa, 1 don't think the President is disabled as a matter of domestic law, Mr. Chairman, from making and implementing an Executive agreement, which is within his Constitutional power. 1 think there is a question as to whethcr the provision in the disarmament legislation is indeedconstitutionally effective inhibit and to prevent a President from making a disarmament agreement if he does not have the advice and consent of the Senate, or a vote of both Houses of Congress. These questions of levels of armamcnts arc pretty obviously in the area of Presidential authority as Commander in Chiefand as the heart of the Government in charge of the Nation's forcign relations. So 1don't think it ought to he accepted that Congress or the Senate, through a measure of that sort, can redistribute Constitutional authority; just as it408 MILITARYAND PhRAMlLlTARY ACIIVITILS seems 10 me a Senate resolution or resewation to a treaty purporting to limit the President's power 10terminate, 1 think, such a resolution, would not be valid. Similarly, 1would doubt very much that legislation enac~edby the Congress could diminish the President'sconstitutional authority or indeed could increase it. Senator ZOKINSKY I. the Disarmament Act itself, it states that: "No action shall be taken under this or any other law that will obligate the United States to disarm, or Io reduce, or to limit the Armed Forces." What, in your estimation, does "under this or any other law" mean? Mr. MEEKER1 . think the effort of Congress was to establish that disarmament agreements can be made only with the concurrence of the Senate or of the whole Congress, and the issue that I raise is whether that is Constitutionally effective. Now, obviously, a President who takes action that is inconsistent and in con- flict with such a statute is in bip.political trouble. but 1 don't think it should he assumed that Congress, thro&h legislation, =an diminish the President's Constitutional authority. Mr. CHAYESW . ell, 1don't think Conpress, throuah leeislation. can diminish the President's Constitutional authority ëither. - - It jus1depends on where you draw the line, as Io his Constitutional authority. And one of the things we have been going through in the last 10years, it seems to me, is some recvaluation of where those lines are to be drawn. When I was legal adviser, 1 won't say it was at the apex of the imperial presidency, but itwas pretty high up the hill, and we attempted to draw the line very favorably to the President, we in the Executive branch, and also to a degree that was acquiesced in by the people in Congress. 1 think Our experience in foreign affairs and domestic affairs since that time has shown us we may have been too ready to acquiesce in a very broad readinp of t-e powers of the President. 1 rememher back in 1952, 1 was law clerk Io Justice Frankfurter, and 1 re- member when the steel seizure case was decided. And there, Justice Jackson in his concurring opinion divides the powers into different segments. He says that when the President and the Congress act together, that is when the power is strongest because we have to assume that the whole Government acting together has the power to do something - in that case seizingthe steel mills. Where the President acts in the absence of legislation, he said, well, there you may tend to indulge some presumption in favor of the President where the foreign policy or war power elements of the situation are strong. But he said where the President acts against the Congress, then the range of his power is at the narrowest. And of course, in that case il did not extend to seizing the steel mills, although it is perfectly clear that the troops needed the ammunition and the weapons that were being withheld because of the strike. So 1 think that when you say that the Congress cannot limit the President's inherent powers by legislation, that is kind of a tautology: You still have to decide where that line is drawn. And when we get to situations that Senator Helms characterized properly, 1 think, as in this kind of twilight zone, it seems to me that the Court, if it ever got that, and the rest of us as responsible constitutional interpreters should hesi- tare Io interpret "in the twilight zone" in favor of an unlimited and unreview- able power of the Presidencv. ~enator ZORINSKY ~.hank you very much, Professor Chayes and Mr. Meeker, for a very outstanding and informative presentation. DOCUMENTS SUBMlTTED RY TICEUNITEDSTATES 409 Thank you verymuch.The proceedingsof this cornmitteeareadjourned. [Whereupon, thehearing was adjourncd at4:35 p.m., subjectto the cal1of the Chair.] MLLITARY AND PARAMILITARYACTIVITlliS Mr. HANSELL M. r. Chairman, 1 appreciate the opportunity to appear before you today to discuss Senate Resolution 15. This resolution would express the sense of the Senate that approval of the Senate is required to terminale any mutual defense treaty hetween the United States and another nation. UNITED STATESFULLY COMMIïTl3D TO MUTUAL I~IIi~SSE TREATIES At the outset, 1should like to emphasize on hehalf of the administration that the United States is fully committed to our mutual defense treaties. We do not foresee any circumstances in which they would be terminated. There should be no doubts with respect to the strcngth and firmness of our commitments to our mutual defense treaties and to our treaty partners. Accordingly, this resolution raises an entirely hypothetical issue. The CHAIRMAN N.OWwait a minute. Don't you think that is a bit of hyper- bole - you don't see any circumstances in which mutual defense treaties would be terminated? There are mutual defense treaties that are moribund, like SEATO. Even the head~uarters stmcture has been abandoned. SEATO was never honored. exceot in ils brcdih. hy any oi thr. m,i)or bignatiirici, e\:cpi ~hcCnitcd SArclWC goiiigI<,g.iirn Iii,ing i~~r~.\eurith Sb.A'I0" Mr Hnssi.~.~.h. lr. Chÿiriii3n. [hi,. oicouri\inienileJ ta ;iddrssj al1ofour mutual defense treaties. The CIIAIRMAN W.ell, that is one of them. You know, 1don't think the State Department serves itselfwell when it comes in with such overstatements. Mr. HANSELL W. ell, at the moment, with respect to SEATO, it is in force and we remain a party to it. It is an obligation and we don't foresee an occasion that would cal1 for termination of it. Recognizing the Facts that you mention, our concern with the resolution is that it somehow suggests that there may he on the part of the Senate, concerns with regard to intent to tcrminate mutual defense treaties. The CHAIRMAN A.re you going to tell us that forever and ever, you cannot foreseecircumstances when any of these treaties would ever be terminated? On its face, that statement doesn't make any sense. 1can foreseemany circumstances and so can you in this changing world where it would no longer be in Our national interest to preserve or perpetuate a given treaty. We have just done it with Taiwan. We are just in the act of terminating a mutual security treaty. It just doesn't seem to me to be helpful to the State Department to say this. il doesn't give you much credibility when you come up here and make a state- ment like that. This is my only point. 1don't think you give us reassurance by making that kind of statement. Gentlemen, I'm terribly çorry, but we have another vote on. We will came back again to take this matter up where we are leaving it.of. The committee will be in recess for a few minutes. [A brief recesswas taken.] The CHAIRMAT Nh.e hearing willcome back to order. The prepared statement of the Department of State will be included in the record as though read so thet we may go directly to questions. [Mr. Hansell's prepared slatement follows :] MI. Chairman and Members of the Committee: 1 appreciate the opporturiiy to appear before you today to discuss Senate Resolution 15. This Resolution would express the sense of the Senate that approval of the Senate is required to terminate any mutual defense treaty between the United States and another nation. At the outset 1 should like Io emphasize on behalf of the Administration that the United States is fully committed to our mutual defense treaties. We do not foresee anv circumstances in which thev would be terminated. There should be no douhtiwith respect to the strength and firmness of our cornmitments to our mutual defense trcaties and 10 our treatv partners. Accordingly, this resolution .. -. rsises an entirely hypothetical issue. 1 recognize that the resolution kas been proposed as a consequence of the termination of the mutual defensetreaty withTaiwan. Howeveras this Committee is fully aware, the termination of that treaty occurred in unique circumstances, which would not be aool..able with resoec. ~ ~anv ot,er ~ ~defense treatv. 'l'heiermination of thdt ireai) ticcurrcd in ihc ccinichi of and uas ncccïvary because of the csiablishmcnt OC relliiii>nswith ihe Go\crnmcnt of ihc Pcoplc's Re~ublic ol China 2s the Icridlilo\crnment of China. trom ihc iimç oithe 1972 ~hin~hai <',>mmuniqué itiras acknori.lcurjudgriicnt bcin ,h;irp si- lion to act. Mr. Chairman, suhstantial difierences in the consequences of treaty making and treaty termination explain the different procedures involved in the two DOCUMENTS SUBMI~D BY THE UNITF.D STATES 413 processes. Put most simply, treaty termination is less risky and significant than treaty making, and may have to he accomplished rapidly. Professor Louis Henkin, in ForeignAffairs and the Corrstitutiorr (1972), ex- plained why the President alone may terminate treaties: ". ..perhaps the Framers [ofthe Constitution] wereconcerned only to check the President in 'entangling' the United States; 'disentangling' is less risky and may have to be done quickly, and is often done piecemeal, or ad hoc, by various means or acts". (At p. 169.) Mr. Wallace McClure, in InternarionalExecufiveAgreements (1942), wrote that the Senate was a check against the President's treaty-making power, but that termination, or "negative action, not being feared by the constitution makers, was left to the repository of general executive power, that is, to the President". (At p. 306.) The views 1have expressed comport with the modern practice of the United States and with the views of most scholars who have addressed the issue. Numerous authorities on Constitutional and international law who have ad- dressed this issue have concluded that the President may terminate treaties, without specification or limitation as to the type of treaty. For example, the American Law Institute, in the Restalemeniof Foreign RelationsLoiv of the UniredSrutes (1965), states in Section 163: "Under the law of the United States, the Presidenr or a person acting under this authority,haswith respecrro an inrernarionalagreementto which rhe Unired Staresisa parry. theaurhoriryro ... rakerhcactionnecessary IO accomplish under the rule stated in section 155 rhe ierminarionof rhe agreemenr in accordancewith provisionsincludedin ir jor thepurpose ..." (At p. 493.)' The Restatement commentary to this provision states that this rule is "based on the authonty of the President to conduct the foreign relations of the United States as part of the erecutive power vested in him hy Article II, Section 1, of the Constitution". (At p. 493.) Professor Henkin states: "Once the Senate has consented, the President is free to make (or not to make) the treaty and the Senate has no further authority in respect of it. Attempts by the Senate to withdraw, modify or interpret its consent after a treaty is ratified have no legal weight;nor husrhe Senareany aurhorifative voice ininlerprering a treury or interminaringil." (ForeignAfiirs and the Cf~t~,stiturial,p. 136.) Dr. Elbert M. Byrd, Jr., of the University of Maryland. has written in his book Treariesand ExecutiveAgreemenrsin the UnitedSrares (1960) that : ". ..from a constitutional view,it is much casier to teminate treaties than to make them. A treaty by definition in constitutional law, can corne into existence only by positive action by the President and two-thirds of the Senate, but a simple majority of both Houses with the President's approval çan terminate them, and they may he rerminotedhy the Presidenralone." (At p. 145.) * Ernphasissuppliedthraughout.414 MILITARY AND PARAMILITARY ACTIVITIES Professor Laurence H. Trihe, of the Harvard Law School, hds written in his recently published AmericanConstitutionalLow (1978) as follows: "Although influenced (often decisively) hycongressional action or consti- tutional restraintthe Presiden t..has exclusivr eesponsibiliry/orannouncing and implementingmilitary policy, for negotiating, administering, and iermin- atingireatiesor executiveagreements; for establishing and breaking relations with foreign governments; and generally for applying the foreign policy of the United States." (At pp. 165.166.) Mr. Wallace McClure, in his work entitled lnrernationalE.xecurive Agreements (1941), wrote: "It is customary for trealies io carry provision>laying down the steps to he taken if one of the participating governments wishes to divest itself of the obligations which have heen assumed; for instance, a year's notice hy one party to the other or others. But treaties do not specify the organ of the national government by which such notice is to be given. In the United Staies the Executivegivesthe notice. Somerimehse has@en it on his own initiativesolely." Professor Myres S. McDougal, William F. Townsend, Professor of Law at the Yale Law School, wrote as followsin his study with Asher Lans on "Treaties and Congressional-Executive or Presidential Agreements: Inter-changeable Instru- ments of National Policy", 54 YaleLoiv Journal 336 (1945): ". ..Termination (of treaties) may be effected hy E.xecutivedenunciution, with or ivithoutprior Congressionaaluthorization." (At p. 336.) Professor Randall H. Nelson, of Southern Illinois University, in an article entitled "The Termination of Treaties and Executive Agreements by the United States: Theory and Practice", 42 Minn<.;utuLaw Review (1958): "Dinlomatic oractice couoled with iudicial ooinion demonstrates that the Prc\!dcnt. ;asihc ~hici,>rg;in of fieeipres~ed in the Statemçnt or Mr. Iierbert H~nsell. the Lecal Adviser for the ~epaitment of State, which has been submitted to this~ommitce. We concur in ils conclusions and reasoning. Thank you. A lli*!cr<>rIss tirm a,\i>ii~irdslih a civilaction \hall no! Anng ii.intr.iigiiiiiin or Iiiigaiionmaki or pdrticipdtr IIm;ikin,: an rrtr~~utlict~ili:.temrnt. othrth.,"3 quo- talion from or refercncc i.>oub~ ~ r~ards. iht :cniinati<,nufncu, or .'r,mment,whichtcnJ iu influrnîz iudcr <,r,un. .Thr rrlraar by a lawycr of out-of-coun statemenis regarding an anticlpacd o; péndingtrial mai improperly aiTecithe impartiality of the tribunal. For these reasons, standards lor permissibleand prohibitedconduct of a lawyerwith respectto trial publicityhave becn establirhed. Senator JAVITSW. ould you agree with him on the substance or do you just agree with him on the fact that you shouldn't speak? Mr. HAMMOND N.o, we also agree with him on the substance. Senator JAVITS1.sthat the essence of your brief? MI. HAMMOND Y.es, and with the hrief filed in the court. The CHAIRMANL .et me ask you this. Are you constrained with respect ta answering questions hecause of the court action? MI. HAMMOND M.I. Chairman, it is Ourview that the constitutional questions can he addressed without necessarily talking about the particular claims and facts of this case. To that extent, we do not feel restrained. The CHAIRMAN A.l1right. VARIOUSWAYSOF TERMINATING A TREATY Let's consider the different ways that a treaty can he terminated, ways that don't seem to he subject to much douht. Clearly a treaty can he terminated if the two Houses of Congress agree upon ils termination and the President concurs by signing a joint Congressional reso- lution. Would you agree? If the Congress passes a joint resolution terminating a given treaty and the President concurs hy signing the resolution, is that one method by which a treaty can he terminated? MI. HANSELIM .. ay 1answer that, MI. Chairman? The CHAIRMAN P.lease. MI. HANSELL T.hat would, in fact, terminale the domestic law elfect of the treaty. The President would have to take action to terminate the treaty as a matter of the international relationships thdt are created hy the treaty. TERMINATION OP TRWTIES WlTH NO PROVISIONSFOR TERMINATION The CHAIRMAN S.ppose that the treaty does no1contain any provision relative to termination? Suppose that treaties were written the way your statement was written and thatitwas never contemplated that under any circumstances would any mutual defense lreaty ever be terminated, sono termination clause was even placed in the treaty. How would such a treaty be brought to an end? If it con- tains no termination clause, how would such a treaty he terminated? Mr. HANSELL T.he President, under the Constitution, would have the power to terminate the treaty. The CHA~~MAW N.ith or without the concurrence of Congress? Mr. HANSELL H.e would have the authority to dot without the concurrence of Congress. The CHAIRMAN O.n what hasis do you make that statement? Senator JAVITSW. hat is the authority? Mr. HANSELI.T . he authority is the President's constitutional role in im- UOCUMENTSSUBMITTED BY THE UNITED STATES 419 plementing treaties and his authority under the Constitution to conduct the foreign relations of the United States. The CHAIRMAN A.re you making an argument that he has inherent authority to terminate treaties at will, whether or no1 the Congress concurs and whether or no1the treaty contains any provision to teminate? That's what you're saying. Mr. HANSELL 1.would no1make that sweepinga general'uation,Mr. Chairman. The CHAIRMAN B.utit seems to me you have. Mr. HANSELL 1.am saying that the Constitution does repose in the President authority toterminale international obligations of the United States. The CHAIRMAN W.here does the Constitution so provide? Mr. HANSELL T.he power ofthe President as definedinarticle II, Mr. Chairman. The CHAIRMAN W.ell,wheredoes article II say that the President may terminale treaties or international agreements? Mr. HANSELL It. does not expressly so state, of course. Senator JAVITSW . ell, what are you relyingon? Read it to us. The CHA~RMAJN u.st what are you relying on? Mr. HANSELL 1.would like to express one very important comment in regard to al1this. As 1think Senator Javits exvressed earlier in this h-arine. this is fun- dÿmenially a mdtter of :~ççornmodationhtuccn thr two hranrhcï. Let me quoic one paragraph froni niy prior iiaicmcni ihai has bccn s~hmiiieil for the record. It is this 'l'hcrchas bcena rcm.irkable degrec uf harniuny and a~.commodaiionbe- taccn the Eseiuti\c and Icgisl.tiivchranihcr on trcaiy terminatiini. Hui ihat does no1respondIO my quesiion I am idking aboui a 1rc;iiythai doe. niit iont:iin ;iny su~hprovision. Mr. I~As~I:I.I.I. understand ihat. hlr. Ch;iirmon.420 MILITARYAND PARAMlLlTARY ACTIVITII~ The CHAIRMAN Y.OUhave ais0 cited the Constitution. Will you cite me the provision of the Constitution on which you rest your case? Mr. HANSELL. 1would need to refer you to article II, the provisions of which I don't have with me at the moment. Senator JAVITSW . e will cet that for vou. Mr. Il.i~si:i.i.. II ïonccrns the po\i,e; oi the Presiicic<>nductthr Lbrcign rïlaiiunsur ihe Lnited Staics. u,hish have inhcrently been re;ogniïcJ ah the haiis for that power. If 1may paraphrase the brief of the United States in the litigation that pre- viously was referred Io, it notes that article II provides, in pertinent part, that the Executive power shall be vested in a President of the United States; that the President shall be Commander-in-Chief; that the President shall have power, by and with the advice and consent of the Senate, to make trcaties, provided two- thirds of the Senators present concur. The statement in the brief on this issue is as follows: Article 11confers the Executive power in general terms, strengthened by specific provisions where emphasis was appropriate and limited by direct constraints where limitationwas intended. No express constraint was placed on the termination of treaties nor was any express power with respect to treatv termination ~ranted to Coneress. The Senate role of advisine a-d conséntingin the making of treaties;~, therefore, not an independent source of legislative power, but is, instead, a limitation upon the treaty-making power gantcd ta the President. The President's power to terminate treaties, Mr. Chairman, is derived hy implication, not byexpressterms, from article 11.In twocenturies of constitutional history exercised on a number of occasions, and has been recognized, 1 think, by most authorities. It kas been the consistent view of the Department of State and the executive hranch that the President has that authority. PRECEDENTS FOR PRESIIIENTIAL TERMINATION OF TREATIES WITHOUT TERMlNATlON PROVISIONS The CHAIRMAN W.ell, we have been given a good deal of scholarly opinion to the contrary. The committee has been referred to any number of cases where the Congress has acted to terminale treaties with the concurrence of the President. Can you cite a case where the President has terminated a treaty that did not contain a provision relating to termination, and without the concurrence of the Congress ? You heard Senator Goldwater examine. or analvse. the 12 cases the State Depariment harl preienicrl and iaiil ihat thcrc ver: eTtenuaiing iiriuiiijt;iiiccs in thosc aises and, thereiorc. the) ucrc not \alid as prc:cJcnts for~thr~prupo,iiion that you put to us this afternoon. Mr. HANSELL 1.did hear that, Mr. Chairman, and 1welcome the opportunity to refute that comment. In the memorandum which we have submitted for the record, and also in the brief filed with the district court, are identified a number of instances of Presidential termination. In my statement, if you will turn to pages 6, 7,8,9, and IO,you willseethere listed statements by a group of eminent constitutional and international law scholars, such as Professor Henkin, Pro- fessor McClure, Dr. Byrd of Maryland, Professor Tribe of Harvard, Professor McDougal of Yale, Professor Nelson of Southern Illinois, Professor Reeves of Michigan, Professor Willoughby of Johns Hopkins, and quotations from their works on this issue. I>OCUMIINTSSUBMIITI:O BY THE UNITED STATF.S 421 We did no1 include in my staiement, but there have been included in the memorandum 1 have submitted for the record, the dozen instances to which Senator Goldwater rcferred. 1do have 10 say 10you, without any reflection on the scholarship of his staiï, thai his characterization can only be described as erroneous. Let me identify some of those for you, Mr. Chairman, if 1 may, because I think in answer 10your question 1can quickly enumerate the treaty terminations that would respond to your question. 1will identify very hastily the cases listed in the memo, and then those thIt can recall which were treaties that did not have a termination notice provision. In 1815,President Madison terminated the Treaty of Amiiy and Commerce with the Netherlands; in 1899,President McKinley tcrminated certain articles of the Extradition, Friendship, and Commerce Treaty with Switzerland; in 1920 - and this one 1 am quite sure was a treaty that had no termination clause - President Wilsonterminated a Treaty of Amity, Commerce and Navigation with Belgium.Thcse were al1instances where there was Presidential action only. In 1927,President Coolidge gave notice of termination of the 1925treaty with Mexico on the prevention of smuggling. In 1933, President Roosevelt issued notice of withdrawal from the Multilateral Convention for the Abolition of lmport and Export Prohibitions and Restrictions. In 1933President Roosevelt gave notice of terminalion of the Extradition Treaty with Greece. In 1936, President Roosevelt ierminated the 1871 Treaty of Commerce with Italy. In 1939,President Roosevelt terminated a 1911Treaty of Commerce and Navigation with Japan. In 1944,President Roosevelt terminated the Inter-American Con- vention for Trademark and Commercial Protection. In 1954. l'residcnt Eiscnhoucr gave notice of uithdrïu~al from ihe 1921Con- vention on thc Uniforniity of Norncnil;iiure for the Cllirsificaiion 01'Mcrchan- dise. In 1962. President Kennedv terminatcd the 1902Convention on Commercial Relations bith Cuba. In 196<,Presideni Johnson gave notice of denunciation of the 1929Warsaw Convention Concerninr International Air Travel, which sub- sequently was withdrawn contrary to thérequest of a numher of members of this body. As 1said, 1am clear about one of those cases, but would have to check the others again, as to whether or not there was a provision for notice of termination. The CHAIRMAN S.naior Javits? Senator JAVITST .hank you, Mr. Chairman. Mr. Hansell, you don't have to answer any of these questions orally now. Just take them away and think about them. Have a home examination. It seems to me that we need to know the following. EFVBCTOF PASSAGE OF SENATE CONCURRBNT RESOLUTION 2 If we passed Senate Concurrent Resolution 2 and the House passes il, and the President vetoes it, which we mus1assume, as he may do that, and we passed it over his veto, if thcn becomes law. Now, having passed the lawcontained in this bill, would the Presidentthereafter be able to terminale a treaty according to its terms? Mr. HAMMONO E.xcuse me, Senator, are you referring to Senator Goldwater's resolution'! Senator JAVITS1. am refcrring to the resolution introduced by Senator Gold- water, Senate Concurrent Resolution 2.422 MILITARYAND PARAMILITARYACTIVITIES Mr. HAMMOND T.hat is a concurrent resolution, 1 believe, and is not subject to the President's consideration or to his veto. Senator JAVITSO . K, let's leave out the concurrent resolution. Suppose we passed Senate Joint Resolution 2, and it was passed over the President's veto, that is, he had vetoed it. Would he, in your opinion, thereafter, have the power to terminate a trcaty, except according to the terms of the law which we have passed? That is the real $64 question to me. Frankly, I don't think we can do anything about the past, including the PRC. But that doesn't solve it at all. That's not even whyit was raised. That is why 1said you don't have to answer this now. Mr. HANSELLS.enator, I think 1 would like to accept your invitation not to do so for the rcason that you have posed a hypothetical issue which we prefer, for a good many reasons, not to try to speculate about. But 1 understand the serious interest of the Committee in the question and with your permission, 1 would like to take it and consider how we might respond to it. Senator JAVITSM . ight 1 ask you to do this hurriedly and quickly. We don't want you to go away under any false impression. There is really nothing hypo- thetical about it because we can report out a joint resolution instead of a con- current resolution. There is nothing to stop us from doing that at all. On the contrary, 1am sure that the sponsors would be very pleased to do this. That is a very pertinent question. [The information referred to follows:] [suppliedby Department of State] In Ourjudgment, a statute purporting to prohibit the President from termina- ting existing or future treaties without Congressional concurrence would be unwise as a matter of policy, would raise serious Constitutional questions, and would he in conflict with a Constitutional practice that has worked successfully for nearly 200years. As a matter of policy, it would be unwise to weaken in this fashion the President's power to conduct foreign policy, and in any event such legiskation would be unworkable more often than not. There are many situations in which the President must make determinations and findings of fact that will result in a termination of a treaty, or its suspension or in a withholding of performance. The President must decide whether there has been a material breach by the other party justifying responsive action, or whether armed conflict or other emer- gency indicates a termination or suspension. There may have been a fundamental change in the circumstances relied upon in the making of the treaty, and this too must be determined by the President. The President must decide whether a treaty has become impossible to per- form. and whether a treatv has been fullv executed or has become obsolete. The l>rcrideniiiiIIhavc 10 dcGdc uherhcr a Change in ihc lcgal sr.iiu\ of i>n,,Cihc p.irtic5uill nexssiiatc lcrniination. and tic uill haIil'rerideniilic1i.min icrniiiiaie trc.~iicnu.iuld require the suhmirsion 1,)the Court <~l'di\putcrwhich Aree~ienti.~llswithin the diime\tiz jurisdiction of the admini~terin~authority. On the one hand, it may be contended that the provision is not intended to require such suhmission in view of the absence of any specific reference to a waiver of the immunity expressed in the principle of Article 2, Paragraph 7, of the Charter that nothing in the Charter shall require the members to submit matters essentially within their domestic jurisdiction to settlement under the Charter. Bv such reasonine -t would be concluded that whether or not a disoute involved the interpretation or application of the trusteeship agreement, such dispute, if it is essentially within the domestic jurisdiction of the administering . auihority, is not required to be submitted to th; Court for decision. On the other hand, it may he argued that hy means of the ahove provision (especiallywhen the phrase "any dispute ii.hurever"is present), the administering authority kas consented to the compulsory jurisdiction of the Court in al1cases regardless of the principle of Article 2, Paragraph 7. Alternatively, it may be argued that by the inclusion of the above provision in the trusteeship agreement, it is recognized that any matter relating to the interpretation or application of the trusteeship agreement is not a matter which is essentially within the domcstic jurisdiction of the administering State and is therefore properly to be referred to the Court. The Senate resolution relative to the acceptance of compulsory jurisdiction of the Court contains a proviso that the declaration shall not apply to "disputes with regard to matters which are essentially within the domestic jurisdiction of the United States us determinedby ilte Uniied Bures". It is quite possible that the United States willre-ard certain matters which mav he the subiect of disoutes Iirising under the irusiccship agreement bcing erwntially within 11,domïrtic ,urisJiction. cren ihoiiph such Jisputcs niay iniul\,c the interprctliiion or iippli- cation of the trusteeship agreement. In any event, there would appear to beno douht that the ohlieation which would be imoosedon the United States hv the .. . above provision, regardless of the interpretation given to it, would not contain the limitation which is present in the phrase "as determined bv the United States". In view of the action bv ~oneress imoosine this oarticula; limitation. it would he unwise for the ~xecitive 6 accedéto an obiigation of compulsory jurisdiction in the case of the Japanese mandated islands which does not contain this limitation. c. If the trusteeship agreement is to he of a bilateral character, between rhe United States and the Security Council, the agreement would no1 be enforceable in the Court unless, as seems probable, the Court would re- cognize suits by other Members of the United Nations for the purpose of enforcing their rights under the agreement. If the Security Council alone were competent to enforce the agreement against the United States, no dispute could be adjudicated by the Court inasmuch as the Security Council may not be a party before the Court and the only legdl remedy of the Security Council would be to request an advisory opinion from the Court. If other members of the United Nations are permitted to enforce their rights against the United States under the trusteeship agreement directly in the Court, the agreement would in this respect resemble a multilateral agreement. In such case, it should be noted that the Senate resolution provides that the declaration OOCUMliNTS SUBMITTEU BY THE UNITED STATES 427 of compulsoryjurisdiction shall not apply to "disputes arising under a multilateral treaty, unless (1) al1parties to the treaty aiïected by the decision are also par- ties to the case before the Court, or (2) the United States specially agrees to jurisdiction". Even though the trusteeship agreement may not be a "treaty", it is doubtful whether the principle in this proviso was intended by Congrcss to apply only to treaties and not to executive agreements, since breaches of obligations under both come equally within the compulsory jurisdiction accepted in the declaration. The acccptance of the New Zealand type provision would therefore appear to constitute an agreement to jurisdiction of the type excepted in the oroviso in the absence of soecial aereement. The tvD,.f ~rovision which 1% rcc,>mmendcdin this pdpcr woulJ pcrmlt as a Iiniitatiiin upon thc agreemcni olthc Unitcd Stater tu jurisdictiun or ihc C<>urtovcr di~puic~ariqng undcr thr trusteeship agreement, ihe requirement that al1parties affected by Ïhe decision must also be parties to the case bcfore the Court. MlLlTARY AN0 PARAMILITARY ACTIVITIES 1, the undersigned, Davis R. Robinson, Agent of the United States of America, hereby certify that each document submitted hy the United States of America pursuant to Article 56 of the Rules of Court is an accurate translation, tran- scription, reproduction, or representation. (Signed) Davis R. Roei~so~, Agent of the United States of Amenca.