the Micronesian Claims Act of 1971 deals with the ex gratia settlement of Micronesian war claims and thus disregards questions of culpability for war claims under international law, the statute nevertheless directs the Commission to use damage indicies available in international law and the law of the Trust Territory.

The Commission had ruled that such indices were inapplicable. Subsequently, the appellants brought suit in the U.S. District Court for the District of Columbia. The district court dismissed the appellants' challenge to the award standards used by the Commission on the ground that the act did not permit the district court to conduct such a review. Relying in part on the finding in Ralpho v. Bell, infra, that there is some limited scope to review the activities of the Commission, the court of appeals remanded the case to the district court with instructions to vacate the challenged awards of the Commission end to direct the Commission to redetermine the awards in a manner not inconsistent with the Court's opinion.

Portions of the opinion appear below:

Melong Laitak died as a result of the conflict in Micronesia between the United States and Japan during World War II. When, over 25 years later, the Commission was established to deal with claims of loss arising from those hostilities, his survivors, appellants here, filed a claim form, praying for recompense of $11,000. On the basis of their filing, the Commission issued its first opinion allowing the claim but incorporating a strikingly different assessment of the appropriate award. This initial decision acknowledged the Commission's statutory duty to resolve claims "in accordance with the laws of the Trust Territory of the Pacific Islands and international law," yet it eschewed reliance on either territorial or international wrongful-death recovery rules-which, like regulations applied in war-claims programs elsewhere in the Pacific theatre, had as their goal compensation of survivors for "pecuniary damages sustained by them" [5 Hackworth, Digest of International Law 747 (1943)] as a result of their loss. Those compensatory standards, operable as they were on an evidentiary showing, were perceived as inconvenient because "memories have dimmed and documents are much more difficult, and sometimes impossible, to obtain." Instead, the Commission devised a chart setting, for all cases, the quantum of recovery entirely by the decedent's age at death. Using this chart and Melong's age of 27 at death, the Commission awarded his survivors $4,400.

Melong's survivors then availed themselves of the mechanism for administrative reconsideration, following which the Commission promulgated a final decision cleaving to the measure of recovery it had previously elected but drastically revamping its reasoning. The keystone of its new rationale was the ex gratia denomination of

payments under the Micronesian Claims Act,1 for it read the congressional invocation of Trust Territory and international law [see footnote 3] as directing it only to those laws pertaining to ex gratia war claims. Territorial and international wrongful-death principles were dismissed as "clearly inapplicable" because rooted in culpability rather than charity. .

The Commission asks us to believe that Congress purported to bind it to the imperatives of international and local law in order merely to demonstrate the degree to which the Commission was unfettered by any legal norm, and so might act with impunity. . . .

The Act recites, to be sure, that its mission is ex gratia settlement of Micronesian war claims-ex gratia because both the United States and Japan have historically denied any responsibility to satisfy them. Just as assuredly, Congress intended the Commission to disregard questions of culpability under international law in deciding whether claims were to be allowed, and to debar no one simply because a nation's culpable involvement in a death could not be shown.2 Yet the statute implicitly, and its legislative history positively, require consideration and adjudication of claims to be otherwise "in accordance with" international law standards. And international law, though it imposes liability for death caused by unlawful activities during hostilities, and prescribes there for recovery equal to the pecuniary loss consequentially suffered by survivors, assesses no liability whatever for death resulting from war lawfully conducted, and provides, of course, no "rule" at all for determining awards therefor. The Commission's ex gratia interpretation, with its built-in premise that neither the United States nor Japan contributed culpably to any Micronesian death, would permit blithe disregard of every measure of damages discoverable in international law, and change it only to heed a nonexistent rule. Clearly no such outcome was contemplated by Congress.

... Trust Territory law gives compensatory damages for wrongful death but, not surprisingly, embodies no principles regarding war claims, much less guidelines for ex gratia awards deriving from deaths inflicted in derogation of no legal norm. Thus the Commission, by narrowing its perspective to encompass only ex gratia programs for Micronesians, would ignore territorial law as it is, and hypothesize rules of law that do not end never did exist in the Trust Territory. . . .

... [W]e find the unmistakable directive of the statute to be that the Commission utilize the indices of damages available in international and Trust Territory law.

150 U.S.C. App. § 2019 (a) (Supp. II 1972):

It is the purpose of this title... that, with respect to war claims, the United States should make an ex gratia contribution . . matching an equivalent contribution of the Government of Japan, to Micronesian inhabitants of the Trust Territory. . . .

The statute incorporated in this regard the terms of the Agreement on the Trust Territory and the Pacific Islands, Apr. 18, 1969, United States-Japan, 20 U.S.T. 2654, TIAS No. 6724 ("Agreement on Trust Territory"). Black's Law Dictionary 660 (4th ed. 1957), defines ex gratia as "[o]ut of grace.... A term applied to anything accorded as a favor; as distinguished from that which may be demanded ex debito, as a matter of right." See M. Whiteman, Damages in International Law 745-746 (1937).

2 "By the terms of the bill, the Commission is authorized to receive, examine, adjudicate, and render final decisions respecting Micronesian claims, in accordance with the laws of the Trust Territory of the Pacific Islands and international law. Under customary international law, civilians in a war zone . . . are not entitled as a matter of law to compensation for death or physical or property damage which results from the lawful conduct of hostilities. That rule is not intended to come into play in respect to these claims, which will be governed by the agreement with Japan and by this resolution. The purpose of compensating Micronesians for wartime claims is to meet their claims whether they arose as a result of the lawful conduct of hostilities or otherwise. Hence, payments are an ex gratia contributions to the Micronesians. No Micronesian claimant could be debarred on the ground that his or her claim fails to meet the test of customary international law. A reference in the bill to international law is useful in furnishing guidance to the Commission on the measure of damages to be applied in meeting claims. . . ." H.R. Rep. No. 92-226, 92d Cong., 1st Sess. 4 (May 25, 1971) (emphasis added).

350 U.S.C. App. § 2019c (a) (Supp. II 1972) provides that "[t]he Commission shall have authority to receive, examine, adjudicate, and render final decisions, in accordance with the laws of the Trust Territory of the Pacific Islands and international law" all claims under the Act (emphasis added).

"The principle that, for injuries to or destruction of private property in necessary military operations... the government is not responsible, is thus considered established. Compensation hast been made in several such cases, it is true; but it has generally been . . . 'a matter of bounty rather than of strict legal right.' Juragua Iron Co. v. United States, 212 U.S. 297, 303, ... (1909). quoting United States v. Pacific R.R. Co., 120 U.S. 227, 239, . . . (1887). See Assistant Legal Adviser for International Claims, Letter of Sept. 17, 1957, quoted in 8 Whiteman, Digest of International Law 825 (1967) ("it is a generally accepted principle of international law that a state is not liable for losses and damages caused by military operations against opposing forces (such as shelling and bombing), unless they resulted from wanton acts or operations which were unnecessary from a military standpoint"). Cf. United States v. Caltex, Inc., 344 U.S. 149, . . . (1952). . See generally 5 G. Hackworth, Digest of International Law § 536 at 693–706 (1943).

U.S. App. D.C. 76-1201, pp. 3-12.

87

Other Subjects of International Law

Antarctica

At the Ninth Consultative Meeting under the Antarctic Treaty (TIAS 4780; 12 UST 794; entered into force for the United States June 23, 1961), held at London from September 19 to October 7, 1977. the principal items on the agenda were the questions of Antarctic marine living and mineral resources. The treaty contains no specific reference to resource activities, and the treaty parties attending consultative meetings have shown an increasing concern with these issues.

Ambassador Robert C. Brewster, in his opening statement on September 19, 1977, stressed the importance of Antarctica to the Earth's oceans and atmosphere and the need for preservation of its environment, and summarized the preliminary views of the United States on the resource issues as follows:

The possibility of activities directed toward Antarctic living and nonliving resources are the key issues. The challenge such activities could pose to our common commitment to the preservation of the Antarctic environment and to the treaty itself, is, in the view of my delegation, the prime issue facing this consultative meeting.

In the case of living resources found within the Treaty area, the question is not so much whether harvesting will occur, but how it can be ensured that utilization of living resources will take place in accord with our commitment to the Antarctic environment. My delegation believes that development of a conservation arrangement covering Antarctic marine living resources is required, and urgently. The discussions at the July preparatory meeting suggest that we are substantially agreed on this. My delegation believes that a conservation regime should incorporate the following elements:

-First, it should be directed to fishery resources and not directly apply to species already regulated pursuant to existing international agreements (whales and seals), provided that it take account of the relationship of target species to such other species and to the Antarctic ecosystem as a whole . .

-Second, it should provide for effective conservation of the species covered throughout their entire range.

-Third, it should provide for and encourage participation by all interested states.

-Fourth, it should provide for a separate institutional mechanism to perform two basic functions: 1) the development and implementation of conservation measures themselves; 2) the collection and analysis of the data necessary for the development of effective conservation enforcement.

-Fifth, it should provide for effective enforcement arrangements to ensure compliance with conservation measures.

In our view, these principles provide a sound basis for an initiative by the consultative parties on living resources in Antarctic waters, an initiative which would not only reflect the vitality of the Antarctic treaty system, but also accommodate the legitimate inerests of the international community at large.

The commitment we share to the preservation of the Antarctic environment is a touchstone of our approach to the equally important issue of possible mineral resource development in the Treaty area. Unlike living resources, Antarctic mineral resources have not yet been the object of commercial exploration and exploitation activities. Nonetheless, we believe it essential that there be an agreed arrangement to determine whether mineral resource activities would be compatible with the objective of preserving the Antarctic environment and to ensure the effective management of such activities, if undertaken. An important contribution to understanding the mineral resource issues can be made by the work of the technical experts included on our delegations. We hope that the nations participating in this meeting will bring their extensive knowledge and experience to bear in elaborating a workable and open arrangement for dealing with Antarctic mineral resources which can be in place prior to whatever mineral resource activities may occur.

Opening statement by Robert C. Brewster, U.S. Representative, Ninth Antarctic Treaty Consultative Meeting, Sept. 19, 1977.

The operative pars. of the recommendation on marine living and mineral resources adopted by the Ninth Consultative Meeting and referred to the Consultative Governments for their approval follow:

Recommendation IX-1

Antarctic Mineral Resources

Recommend to their governments that:

1. They reaffirm the basic principles set forth in Recommendation VIII-14 of the Eighth Antarctic Treaty Consultative Meeting;

2. They take note with appreciation of the Report of the Group of Experts on Mineral Exploration and Exploitation annexed to the Report of the Ninth Consultative Meeting and make the best possible use of its conclusions and guidelines;

3. They continue to study the environmental implications of mineral resource activities in the Antarctic Treaty Area and hold at a time and place to be arranged through diplomatic channels a meeting of ecological, technological and other related experts, in accordance with Recommendation IV-24, with a view to developing scientific programs aimed at: (i) improving predictions of the impact of possible technologies for mineral exploration and exploitation in the Antarctic, as outlined in Seciton IIB of the Report of the Group of Experts, and in Section 5 of the SCAR EAMREA Group Report; (ii) developing measures for the prevention of damage to the environment or for its rehabilitation, in accordance with Section IIC of the Report of the Group of Experts;

4. They endorse the following principles elaborated at the Special Preparatory Meeting held in Paris from June 28 to July 10, 1976:

(i) The Consultative Parties will continue to play an active and responsible role in dealing with the question of the mineral resources of Antarctica; (ii) the Antarctic Treaty must be maintained in its entirety.