of the Senate prior to ratification ... Next is the congressionalexecutive agreement, entered into pursuant to statute or to a preexisting treaty. Finally, there is the "pure" or "true" executive agreement, negotiated by the Executive entirely on his authority as a constituent department of government. It is the prerogative of the Executive to conduct international negotiations; within that power lies the lesser, albeit quite important, power to choose the instrument of international dialog. (Emphasis added.)

(Congressional Oversight of Executive Agreements, Committee Print, 93d Cong., 1st Sess., p. 6.)

The Administration believes that an effective system of consultation would better serve the needs of United States foreign policy, and democratic control of that policy, than would a legislative measure that raises the foregoing problems. The Administration intends to continue to consult fully with both Houses of Congress. Our consultations will be guided by an understanding that most agreements of fundamental and lasting importance should be concluded as treaties by and with the advice and consent of the Senate. It is our intention to involve the House of Representatives in making these determinations, and we would hope that the Senate would do so as

well.

We suggest that no modification of rules is necessary to allow the Senate to express its sense with respect to these matters. Certainly a sense of the Senate resolution asking that a particular agreement be submitted as a treaty would be ignored by the Executive only at great risk to the agreement in question.

It is our hope that an era of institutional confrontation has now given way to an era of cooperation and respect for the constitutional roles of the equal branches of our government. We believe that the new Administration and the new Congress should seize the opportunity to demonstrate over a long time that a cooperative system of meaningful consultation can be successfully implemented. For our part, may I assure you that the Department of State looks forward to working with you in a spirit of cooperation that will benefit from the advice of the Senate, as well as its consent.

Dept. of State File No. P78 0023-1579.

International Acts Not Constituting
Agreements

Proceedings of the U.S.-Mexican Commission in 1923 In D'Angelo v. Petroleos Mexicanos, 422 F. Supp. 1280 (1976), the U.S. District Court for the District of Delaware rejected the contention of a receiver for a dissolved Delaware corporation that the PayneWarren Agreement entered into at the so-called Bucareli Conferences between the United States and Mexico in Mexico City in 1923 was an

executive agreement. The plaintiff contended that the Payne-Warren Agreement changed the law declared in the 1917 Mexican Constitution so that landowners could acquire certain concessions from the Mexican Government to use oil under their land. Relying in part on a letter dated September 13, 1976, from the Department of State to plaintiff's attorney, the district court in an opinion by Senior District Judge Edwin D. Steel, Jr., ruled that no agreement resulted from the Bucareli Conferences.

Portions of the October 7, 1976, opinion of Judge Steel appear below:

Prior to the adoption in 1917 of the Mexican Constitution, article 27, the owners of the surface of land owned the oil in the subsoil. Article 27 changed this by providing that the oil in the subsoil belonged to the Mexican Government which was authorized to grant concessions for oil exploitation under conditions not presently important. The effect of the 1917 Constitution was to cancel all concessions granted to foreigners prior to the adoption of the 1917 Constitution. A number of foreign governments, including the United States, protested. As a result the so-called Bucareli Conferences were called and held in Mexico City in 1923. The United States was represented at the conferences by Messrs. Payne and Warren who had been commissioned by the President.

Plaintiff is James P. D'Angelo, the receiver of Papantla Royalties Corporation, a dissolved Delaware corporation, appointed by the Delaware Court of Chancery and as such entitled to assert Papantla's claims. The defendant, Petroleos Mexicanos ("Pemex") is a decentralized agency of the Mexican Government, which is engaged in all phases of the oil business. Plaintiff seeks an accounting upon the theory that Papantla's royalty and participating interests were not extinguished by the decree of expropriation, but continue to exist with respect to oil produced by Pemex since the expropriation. He also seeks a judgment based upon the failure of Pemex to indemnify Papantla for the destruction of its royalty and participating interests should the Court find that the effect of the expropriation decree was to extinguish them.

The background of this litigation can be found in D'Angelo v. Petroleos Mexicanos, 398 F. Supp. 72 (D. Del. 1975), in which an earlier motion of the defendant for summary judgment was denied....

Plaintiff asserts that at the conclusion of the conferences Messrs. Payne and Warren signed an "Executive Agreement" on behalf of the President-plaintiff refers to it as the "Payne-Warren Agreement"-and that this constituted a "bilateral agreement" or "international agreement" between the United States and Mexico under which the Mexican Government recognized the preconstitutional rights of the landowners and of foreign nationals derived through them. This so-called agreement, plaintiff asserts, changed the law

declared by the 1917 Constitution so that landowners could acquire confirmatory concessions from the Mexican Government entitling them to utilize oil under their land if they could prove to the satisfaction of the government that prior to May 1, 1917, they had intended to do so.

Plaintiff further contends that principles established by the Supreme Court of the United States require that the "Payne-Warren Agreement" be treated as the legal equivalent of a treaty and that the rights acquired by the United States or its nationals under a treaty must be honored regardless of any act of state of the other party to it.

It is not necessary to examine the validity of these legal principles. It is sufficient to point out that the Bucareli Conferences did not result in an agreement of any kind between Mexico and the United States. At the conferences the Mexican commissioners stated as Point I that it would be "the future policy" of the Mexican Government to continue to enforce the principles of the decisions of the Supreme Court of Justice of Mexico in five "amparo" cases. In these decisions the Court had declared that article 27 of the Constitution of 1917 was not retroactive and had no effect upon owners of the surface or those entitled to exercise their rights to explore for oil or take some related action, if, prior to 1917, they had performed "some positive" act which had manfiested an intention to exercise such rights. The commissioners stated further that the Mexican Government would grant permits to such persons to drill upon their lands under certain limitations not presently relevant. In Point III the Mexican commissioners referred to the rights of this limited group of persons as "preferential rights". In this litigation the rights have been referred to as "confirmatory concessions." As to the policy of the Mexican Government to grant the "preferential rights" in the future the Mexican commissioners stated in Point IV that:

the policy of the present Executive is not intended to constitute an obligation for an unlimited time on the part of the Mexican Government

In Point V the United States commissioners stated that the United States reserved the rights of its citizens under international law and equity to the subsoil of the lands owned by them prior to the promulgation of the Constitution of 1917. The Mexican commissioners stated that they recognized the rights of the United States to make the reservation.

The United States Department of State likewise reviewed the transcript of the minutes of the Bucareli Conferences . . . and it concluded . . .:

Thus, the said document is not a treaty or Executive agreement of the United States.

See also letter dated September 13, 1976, from the State Department to plaintiff's attorney attached to affidavit of Andrew Ross

What the Mexican commissioners said at the conferences amounted to nothing more than a declaration of policy of the existing government which was subject to amendment or revocation by the government at any time in the future.

Plaintiff's motion for reargument calls for several comments: 1. No "unambiguous agreement" was arrived at at the Bucareli Conferences. . . . The letter dated September 13, 1976, to Mr. Bennethum from Mr. Rovine of the State Department... states that the Bucareli meetings, although themselves not constituting an international agreement, nevertheless did give rise to two conventions which did become international agreements. These conventions . . . were known as the General Claims Convention and the Special Claims Convention. Plaintiff has conceded that both of these conventions are irrelevant to the instant case....

The General Claims Convention (TS 678; 43 Stat. 1730; entered into force Mar. 1, 1924; superseded on Apr. 2, 1942, by the Convention on Final Settlement of Certain Claims of Nov. 19, 1941) was signed on Sept. 8, 1923.

The Special Claims Convention (TS 676; 43 Stat. 1722; entered into force on Feb. 19, 1924; terminated on Jan. 2, 1945) was signed on Sept. 10, 1923.

Set forth below are portions of the text of the September 13, 1976, letter from Mr. Arthur W. Rovine, Assistant Legal Adviser for Treaty Affairs in the Department of State, to Mr. William H. Bennethum, who represented the plaintiff :

. . . I am writing to you to clarify the position of the Department of State with respect to the significance of the "Bucareli" Conference of May-August 1923; and particularly the Proceedings of the United States-Mexican Commission, convened in Mexico City, May 14, 1923.

... [T]he Department has never regarded the Proceedings themselves as constituting an international agreement within the meaning of U.S. law or international law, although the meetings reported in the Proceedings did give rise to two conventions which, of course, became international agreements upon their entry into force.

The Department's conclusion on this matter cannot alter the fact. that the Proceedings report explicit statements of policy made by the Commissioners on behalf of their respective Governments. As you know, President Coolidge approved "the statements and recommendations of the American Commissioners" as reported in the Proceedings, and President Obregon of Mexico approved "the declarations made by his Commissioners" (see Foreign Relations, 1923, Volume II, at 550-552).

It is also clear that the negotiations reported in the Proceedings, particularly the development of the two claims conventions, played an important part in the decision of the United States to resume diplomatic relations with Mexico in September of 1923.

It is therefore apparent that the Proceedings were a significant event in the development of U.S.-Mexican relations, notwithstanding that they do not constitute an international agreement.

Dept. of State File No. P76 0151-556.

For the text of the minutes of the "Bucareli" Conference, which were signed by American Commissioners Charles Beecher Warren and John Barton Payne as well as Mexican Commissioners Ramón Ross and Fernando González Roa, see Proceedings of the United States-Mexican Commission convened in Merico City May 14, 1923 (Washington, 1923). The text of the minutes of one of the meetings during the conference, the Formal Meeting of Aug. 2, 1923, appears below:

A meeting of the Conferences was held at 10 o'clock a.m., August 2, 1923, at No. 85 Bucareli Street. Present: American Commissioners Charles Beecher Warren and John Barton Payne; Mexican Commissioners Ramón Ross and Fernando González Roa.

The Mexican Commissioners stated that the following are natural consequences of the political and administrative program which the Mexican Government has been carrying out, and that they state them in behalf of their Government in connection with the representations relating to the rights of the citizens of the United States of America in respect to the subsoil.

I. It is the duty of the Federal executive power, under the constitution, to respect and enforce the decisions of the judicial power. In accordance with such a duty, the Executive has respected and enforced, and will continue to do so, the principles of the decisions of the Supreme Court of Justice in the "Texas Oil Company" case and the four other similar amparo cases, declaring that paragraph IV of article 27 of the Constitution of 1917 is not retroactive in respect to all persons who have performed, prior to the promulgation of said Constitution, some positive act which would manifest the intention of the owner of the surface or of the persons entitled to exercise his rights to the oil under the surface to make use of or obtain the oil under the surface: such as drilling, leasing, entering into any contract relative to the subsoil, making investments of capital in lands for the purpose of obtaining the oil in the subsoil, carrying out works of exploitation and exploration of the subsoil and in cases where from the contract relative to the subsoil it appears that the grantors fixed and received a price higher than would have been paid for the surface of the land because it was purchased for the purpose of looking for oil and exploiting same if found; and, in general, performing or doing any other positive act, or manifesting an intention of a character similar to those heretofore described. According to these decisions of the Supreme Court, the same rights enjoyed by those owners of the surface who have performed a positive act or manifested an intention such as has been mentioned above, will be enjoyed also by their legal assignees or those persons entitled to the rights to the oil. The protection of the Supreme Court extends to all the land or subsoil concerning which any of the above intentions have been manifested, or upon which any of the above specified acts have been performed, except in cases where the documents relating to the ownership of the surface or the use of the surface or the oil in the subsoil establish some limitation.

The above statement has constituted and will constitute in the future the policy of the Mexican Government, in respect to lands and the subsoil upon which or in relation to which any of the above-specified acts have been performed, or in relation to which any of the above specified intentions have been manifested; and the Mexican Government will grant to the owners, assignees or other persons entitled to the rights to the oil, drilling permits on such lands,