recognition might be thwarted or seriously diluted. No such obstacle can be placed in the way of rehabilitation of relations between this country and another nation, unless the historic conception of the powers and responsibilities of the President in the conduct of foreign affairs. . . is to be drastically revised. 315 U.S. at 229-230 (citations omitted).

The problem of what the President may or may not do without formal Senate consent is one of line-drawing. As one prominent author has put it, "One is compelled to conclude that there are agreements which the President can make on his sole authority and others which he can make only with the consent of the Senate, but neither Justice Sutherland nor anyone else has told us which are which." L. Henkin, Foreign Affairs and the Constitution, p. 179 (The Foundation Press, 1972). We need not attempt to reach the constitutional perimeters of this problem, however, for we are of the opinion that the transaction which gave rise to this lawsuit has the indicia of an executive agreement. The Court attaches considerable weight to the quoted language from the Pink case. It is true that the United States does, at this time, formally "recognize" the Hungarian Government. However, as counsel discussed at oral argument, relations between the United States and Hungary, as well as other Eastern European countries, have not been "normalized" since the end of World War II. The United States' continued dominion over the Hungarian coronation regalia, in which this country claims no property interest, can reasonably be viewed as a serious "obstacle" which may impede the “rehabilitation of relations" between the United States and Hungary. The decision to remove such an obstacle appears to be well within the traditional powers of the President.3

As noted above, neither the Constitution, nor the relevant case law offers significant legal guidance as to which kinds of international agreements must be concluded in "treaty" form subject to the advice and consent of the Senate, and which kinds of agreements may be concluded on the independent executive authority of the President in the area of foreign affairs. However, the Court's review of authorities on the subject of treaties indicates that by common practice from the beginning of the Republic, treaties have customarily exhibited such fundamental characteristics as substantial ongoing defense or political commitments on the part of the United States and substantial ongoing reciprocal commitments by cosigners. The very substantiality of the bilateral commitments traditionally embodied in treaties underlies the Article II, section 2, requirement of Senatorial consent and, in addition, occasions the formality and deliberation with which treaties are generally negotiated and executed. It appears that these characteristics are often lacking in the case of executive agreements. While such agreements are recognized as having the same effect as treaties in international law, they may involve such relatively minor subjects as the "administrative working details for carrying out a treaty or agreement" or be "in the nature of commercial contracts relating to sales of equipment and commodities." 1972 U.S. Code Cong. and Adm. News, p. 3069. The United States enters into approximately 200 executive agreements each year, Id. at 3068, and it has been observed that the constitutional system "could not last a month" if the President sought Senate or congressional consent for every one of them. L. Henkin, Foreign Affairs and the Constitution, supra, at 182. Congress itself recognized this fact in passing P.L. 92-403, 1 U.S.C. 112b, requiring the Secretary of State to transmit for merely informational purposes the text of all international agreements other than treaties to which the United States becomes a party. The House Committee on For eign Affairs stated in recommending passage of that statute that while it wished to be apprised of "all agreements of any significance," "[c]learly the Congress does not want to be inundated with trivia." 1972 U.S. Code Cong. and Adm. News, p. 3069.

While the President's undertaking to return the Hungarian coronation regalia is hardly a "trivial" matter to either the United States or the people of Hungary, the Court is yet convinced that the President's agreement in this regard lacks the magnitude of agreements customarily concluded in treaty form. The President's agreement here involves no substantial ongoing commitment on the part of the United States, exposes the United States to no appreciable discernible risks, and contemplates American action of an

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.

'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).

2

* 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.

* 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

cation 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-Paunce fote 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 estab lished 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.