extremely limited duration in time. The plaintiff presented no evidence that agreements of the kind in question here are traditionally concluded only by treaty, either as a matter of American custom or as a matter of international law. Indeed, while the Court has not exhaustively examined all possibly pertinent treaties, the Court can hardly imagine that any such examination would lend support to the plaintiff's position. Finally, the agreement here encompasses no substantial reciprocal commitments by the Hungarian Government. As a matter of law, the Court is therefore persuaded that the President's agreement to return the Hungarian coronation regalia is not a commitment requiring the advice and consent of the Senate under Article II, section 2, of the Constitution.

For all of the foregoing reasons, the Court must conclude that the plaintiff has demonstrated no reasonable probability of ultimate success on the merits of his claim. This finding necessarily requires the Court to deny the plaintiff's application for preliminary injunctive relief.

In rendering a decision grounded solely on the preliminary injunction question, we have assumed without deciding that plaintiff has standing to bring this action and that the Court has jurisdiction of the subject matter. Determination of those matters, together with the defendant's motions to dismiss or, in the alternative, for summary judgment, will be necessary only if the case proceeds beyond the preliminary injunction stage. The Court has also considered plaintiff's "Motion in Camera" and the same is denied.

At the time this case was submitted, counsel for each side requested the court to stay any order granting or denying a preliminary injunction pending appeal of such order by the nonprevailing party. For the reasons expressed herein, plaintiff's motion for stay under Rule 62 (c), Federal Rules of Civil Procedure, is denied.

1 Citing statement of John R. Stevenson, Legal Adviser, Department of State, in Sub-committee on Separation of Powers, Senate Committee on the Judiciary Ninety-second Congress Second Session Hearings on Congressional Oversight of Executive Agreements 249 (Commercial Print, 1972).

* Treaties are mentioned in three constitutional provisions other than Article II, section 2. None of these provisions make any attempt at definition. U.S. Const., Art. I, § 10; Art. III, § 2; Art. VI.

3

Indeed, as noted earlier, the government has indicated that a prime purpose of the return of the coronation regalia and the attendant ceremony is to aid the "development of better bilateral relations" between the two countries.

U.S. App. Ct. 10th Cir., No. 77-2117.

The United States and the Soviet Union exchanged notes on General Relations on Nov. 16, 1933 (1933 For. Rel. (II) 805; Dept. of State publication 528; entered into force on Nov. 16, 1933) (The Litvinov Agreement).

The Treaty of Peace with Hungary was signed at Paris on Feb. 10, 1947 (TIAS 1651; 61 Stat. 2065; 4 Bevans 453; 41 UNTS 135; entered into force for the United States on Sept. 15, 1947). The text of article 22 of this treaty reads as follows:

1. Upon the coming into force of the present Treaty, all Allied forces shall, within a period of 90 days, be withdrawn from Hungary, subject to the right of the Soviet Union to keep on Hungarian territory such armed forces as it may need for the maintenance of the lines of communication of the Soviet Army with the Soviet zone of occupation in Austria.

2. All unused Hungarian currency and all Hungarian goods in possession of the Allied forces in Hungary, acquired pursuant to Article 11 of the Armistice Agreement, shall be returned to the Hungarian Government within the same period of 90 days.

3. Hungary shall, however, make available such maintenance and facilities as may specifically be required for the maintenance of the lines of communi

Ication with the Soviet zone of occupation in Austria, for which due compensation will be made to the Hungarian Government.

For further information concerning the return of the Hungarian coronation regalia, see ante, Ch. 2, § 3, pp. 25–28.

For further information concerning 1 U.S.C. 112b, the Case-Zablocki Act, see post, Ch. 5, § 5, pp. 412-413.

§ 2

Observance, Application and Interpretation

Application

Succession of States in Respect of Treaties

The U.N. Conference on Succession of States in Respect of Treaties was held in Vienna from April 4 to May 6, 1977, pursuant to General Assembly Resolution 31/8 of November 24, 1976. The Conference was one of the series devoted to the codification of international law on the basis of draft articles prepared by the International Law Commission (the Commission). For the text of the Draft Articles on Succession of States in Respect of Treaties and comments submitted by the United States concerning the Draft Articles, see the 1975 Digest, Ch. 5, § 2, pp. 272-291.

Set forth below are portions of the comments on the Draft Articles on Succession of States in Respect of Treaties contained in the Report to the Secretary of State submitted by Ambassador Richard D. Kearney, Chairman of the U.S. Delegation to this U.N. Conference, on September 12, 1977:

The Commission's Report to the General Assembly in 1974 contained 39 proposed articles. In addition, the Report referred to two matters that had been under consideration but on which the Commission had not reached a decision-whether the articles should make provision for disputes settlement and whether there should be an article providing for automatic succession to "multilateral treaties of a universal character."

Consideration of Draft Articles

At the first plenary on April 4, 1977, the Conference established a Committee of the Whole to which it referred the Agenda item regarding consideration of the question of succession of states in respect of treaties. . .

The Committee of the Whole reviewed the first 29 of the 39 draft International Law Commission articles which comprise Part I on General Principles, Part II on Succession in Respect of Territory, and Part III on Newly Independent States. The Parts not considered are IV on Uniting and Separation of States, and V, Miscellaneous Provisions, which contains a preclusionary article concern

ing state responsibility and the outbreak of hostilities taken over from the Convention on the Law of Treaties and a similar article regarding military occupation.

Of these 29 articles, 25 have been approved by the Committee of the Whole and adopted by the plenary subject to the qualification that if changes are required as the result of any articles adopted at the second session, they may be by an ordinary rather than a twothirds majority.

...

Three of the unapproved articles, 6, 7, and 12, proved sufficiently contentious to be referred to an informal consultation group. This group, despite numerous meetings at odd hours, has been unable to find acceptable positions.

Article 6 as prepared by the International Law Commission would limit application of the Convention ". . . to the effects of a succession of states occurring in conformity with international law and, in particular, the principles of international law embodied in the Charter of the United Nations." Objections to the article ranged from proposals for deletion on the ground of superfluity to an amendment proposed by the Soviet Union which would deal with the underlying problem by providing that nothing in the article should be considered as prejudicing any question relating to the validity of a succession of states. Considerable concern was voiced that the International Law Commission draft article was obscure both as to content and effect and a variety of proposals were put forward in an effort to clarify the article.

The real concern of states supporting retention of the article is that acquisition of territory by aggression should not be legitimized in any way by application of the Convention. The real concern of most states opposed to the formulation is that an exclusionary rule based upon any "violation of international law" is far too imprecise and sweeping. Limiting the scope of article 6 to cases of aggression would have obvious advantages but would also bring a train of uncertainties with it.

Article 7 deals with the intricate problem of retroactive effect. The International Law Commission proposal is that the Convention would apply only to successions of states that occur after the entry into force of the articles". . . except as may be otherwise agreed. A substantial number of developing states objected to the article principally because of the widely exclusive effect it would have upon recently independent states' making use of the Convention. Cuba and Somalia submitted an amendment which attempted but failed to solve the problems involved. The United States delegation then proposed an amendment whose purpose was to permit application of the Convention to a succession that occurred prior to its entry into force for the purpose of resolving any unsettled problems regarding the continuation or noncontinuation in force of treaties applicable to the territory prior to the succession.

There was discussion in the consultation group for adding to the U.S. proposal a cutoff date so that old succession problems would not be revived by the Convention. There was, however, no consensus as to what such a date should be, and considerable opposition to adopting any cutoff. The United States delegation expressed doubt

that there were ancient and unsettled questions of succession to treaties that would be affected by application of the Convention and asked for specific instances. None were put forward.

The third matter before the consultation group was article 12, which excludes from the effects of a succession of states what are loosely termed territorial regimes. This article is a corollary to article 11, which excludes boundaries and boundary regimes established by a treaty from the effects of a succession of states. Article 11 is of paramount importance to the Convention. Disputes over boundaries and boundary regimes have been a most fertile source of armed conflict among states. If boundary settlements and regimes established by treaty could be challenged because a succession of states takes place the results could be catastrophic.

This immediate danger was recognized by the Conference and article 11 was adopted by the plenary without any change in the text prepared by the International Law Commission. Article 12, however, ran afoul of amendments that sought to convert it from a means of reducing international disputes to a method of increasing them. As proposed by the Commission, article 12 says that a succession of states does not affect rights or obligations established by treaty for the benefit of territory in one state, or for the benefit of a group of states or all states, and relating to the use or restriction upon the use of territory in a state. With respect to bilateral arrangements, article 12 thus requires obligations to be attached to particular territory in one state and the rights that are the counterparts to those obligations to be attached to particular territory in the other state. If the rights are established by treaty for the benefit of a group of states or all states there is no requirement that the rights attach to any territory in those states although the counterpart obligations must attach to particular territory in a specific state. The first situation is illustrated by the Columbia River Treaty, in which Canada regulates the flow of the river in its territory in order to increase electric production at dams on the river in United States territory (15 U.S.T. 1555). The second situation is illustrated by the agreement between the United Kingdom and the United States which provides that the Panama Canal will be open to the shipping of all states (Hay-Pauncefote Treaty, 12 Bevans 258, Article III, 259).

Mexico proposed an amendment to article 12 that excluded from the effects of the article treaties relating to military bases established in the territory of the successor state for the benefit of the predecessor or other states. The amendment also declared that such treaties ceased to be in force by reason of the succession. This amendment was replaced by a joint Argentine-Mexican amendment.

3. Obligations relating to the use of any territory of a successor State, or to restrictions upon its use, imposed by a treaty relating to the establishment of military bases of the predecessor State or of another State party, or by a treaty which impedes the full exercise by the successor State of its sovereignty over the natural wealth and resources of its own territory, shall be excluded from the application of the provisions of the foregoing paragraphs. Such treaties shall cease to be in force by reason of the succession.

Cuba... proposed the following amendment.

3. Treaties which were concluded and concessions which were granted in conditions of inequality or which disregard or detract from the sovereignty of the successor State over any part of its territory, particularly in the case of the establishment or attempted establishment of military, naval or air bases, shall be excluded from the application of the provisions contained in the foregoing paragraphs and shall be considered illegal, being contrary to the principles of the Charter of the United Nations.

The Argentine-Mexican amendment was the proposal upon which discussion centered in the Committee of the Whole and the informal consultation groups. With regard to the military base question, the point was made that military bases did not meet the requirements of article 12 because they were not considered as providing for rights and obligations that attached to territory within the meaning of the article. Reference was also made to paragraph 25 of the Commission's Commentary to the article in which the practice of the United States is relied on to support the position that the personal and political character of military base agreements, in addition to the special problems presented by bases established in dependent territories through agreement with the predecessor state, supported the conclusion that such bases could be maintained after a succession only by agreement between the successor state and the third state concerned.

There was no basic objection expressed to the inclusion in the Convention of a clause specifying that military base agreements were excluded from the ambit of article 12 even though some delegates considered the addition unnecessary. However, considerable concern was expressed regarding the consequences of including a reference to treaties that impede the full exercise of the successor state's sovereignty over the wealth and resources of its territory, largely on the grounds that this provided an escape hatch of such dimensions as to greatly impair the utility of the article and that there was no real need for the provision as concession agreements did not fall within the scope of article 12. In commenting on this proposal the United States delegation pointed out that the states most likely to be injured by inclusion of the provision would be the newly independent states since the type of arrangements envisaged by article 12 were almost always between neighboring territories, and newly independent states usually had other newly independent states for neighbors, not developed states.

Equal concern was expressed with regard to any clause that would declare particular treaties illegal or invalid. The Convention is concerned with the succession of states to treaties and not with whether treaties are valid or invalid. The grounds for declaring treaties invalid are set forth in the Vienna Convention on the Law of Treaties and these grounds are stated to be exclusive.

Article 13, which was framed by the Commission as a corollary to articles 11 and 12, provides that: "Nothing in the Convention shall be considered as prejudicing in any respect any question relating to the validity of a treaty."