The commentary on Draft Articles on Succession of States in Respect to Treaties prepared by the International Law Commission (records of the 29th sess. of the U.N.G.A.; Supp. No. 10 A/9610 Rev. 1, p. 85, note 3) reads in part as follows:

(3) What does occur in practice, and is indeed specifically implied by some of the unilateral declarations mentioned in the commentary to article 9, is the provisional application of a multilateral treaty on a reciprocal basis between a newly independent State and individual States parties to the treaty. But in those cases what happens is that the multilateral treaty is by a collateral agreement applied provisionally between the newly independent State and a particular party to the treaty on a bilateral basis. The case is thus totally different from the definitive participation of a newly independent State in virtue of the option accorded to it in articles 16 and 17 to establish its status as a party or contracting State by its own act alone.

For further information concerning succession of states in respect of treaties, see the 1975 Digest, Ch. 5, § 2, pp. 272–290.

The International Air Services Transit Agreement was signed on Dec. 7, 1944 (EAS 487; 59 Stat. 1693; 3 Bevans 916; 84 UNTS 389; entered into force for the United States on Feb. 8, 1945). Pars. 2 and 3 of art. VI of IASTA read as follows:

Any State a member of the International Civil Aviation Organization may accept the present Agreement as an obligation binding upon it by notification of its acceptance to the Government of the United States, and such acceptance shall become effective upon the date of the receipt of such notification by that Government.

This Agreement shall come into force as between contracting States upon its acceptance by each of them. Thereafter it shall become binding as to each other State indicating its acceptance to the Government of the United States on the date of the receipt of the acceptance by that Government. The Government of the United States shall inform all signatory and accepting States of the date of all acceptances of the Agreement, and of the date on which it comes into force for each accepting State.

The Convention of the World Meteorological Organization, with related protocol, was done on Oct. 11, 1947 (TIAS 2052; 1 UST 281; 77 UNTS 143; entered into force for the United States on Mar. 23, 1950).

Self-Executing Treaties

John M. Harmon, Assistant Attorney General, Office of Legal Counsel, Department of Justice, wrote a letter on November 1, 1977, to John J. Sparkman, Chairman of the Senate Committee on Foreign Relations, in which he responded to the request of Senator Clifford P. Case for a summary of Foster v. Neilson, 2 Pet. (27 U.S.) 253 (1829), the case announcing the doctrine that treaties can be self-executing. Senator Case's request was made during the testimony of Judge Griffin Bell before the Committee on Foreign Relations concerning the Panama Canal Treaties of 1977.

Portions of Assistant Attorney General Harmon's letter follow:

Foster brought suit against Neilson charging that Neilson had taken possession of land belonging to Foster and refused to give it up. Foster's claim traced back to a grant from the Spanish Government made in 1804. The Spanish Government in 1800 had, however, ceded the Louisiana territory to France which, in turn, ceded

it to the United States in 1803. If the land in dispute had been validly ceded to France in 1800 then Spain would not have been able to grant title to it subsequent to its treaty with France. There was some dispute between Spain and the United States as to whether the land (which was east of the Mississippi in what was then called West Florida) had been part of the territory ceded by Spain to France and ultimately to the United States.

Chief Justice Marshall noted that in a controversy of this kind involving the national boundary the judiciary is commonly bound by the construction given the treaty by the political departments of the Nation and that the United States had acted on the view that the land had been ceded by Spain in 1800. The United States had taken possession of part of West Florida and legislated with regard to it. Thus, in the view of the Court the 1804 Spanish grant to Foster was invalid.

The Court further held that an 1819 treaty between Spain and the United States ceding East and West Florida to the United States did not alter the situation, despite language in that treaty referring to the ratification of earlier grants by the Spanish king. The Court, 27 U.S., at 314, noted that a treaty could, by its own terms either be self-executing or not:

Our Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court.

The court concluded that the 1819 treaty, because of its particular language, required legislation for its implementation. Since no legislation was passed to provide for the confirming of Spanish titles in the area of the land in dispute the court held that Foster's suit had been properly dismissed.

Dept. of State File L/ARA.

The Treaty between the United States and France for the Cession of Louisiana was signed on Apr. 20, 1803 (TS 86; 8 Stat. 200; 7 Bevans 812; entered into force on Oct. 21, 1803).

The Treaty of Amity, Settlement, and Limits between the United States and Spain was signed on Feb. 22, 1819 (TS 327; 8 Stat. 252; entered into force on Feb. 22, 1821; terminated on Apr. 14, 1903, by the Treaty of Friendship and General Relations between the United States and Spain signed on July 3, 1902). For other portions of Assistant Attorney General Harmon's letter of Nov. 1, 1977, to Chairman Sparkman, see post, Ch. 7, §7, pp. 585–590.

For further information concerning the Panama Canal Treaties of 1977, see generally post, Ch. 7, § 7, pp. 575–596.

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Amendment and Modification

Amendment Procedure

In his July 28, 1977, announcement of the signing of H.R. 186, a bill to implement the Convention on the International Regulations for Preventing Collisions at Sea done October 20, 1972 (TIAS 8587; entered into force July 15, 1977), President Carter expressed the following constitutional reservation about section 3 (d):

Although I have signed this bill, I want to make clear that I have serious constitutional reservations about section 3(d). That section permits Congress, by concurrent resolution, to disapprove a proposed amendment to the convention. The Congress concurrent resolution would not be presented to the President for approval or veto. This may violate Article I, Section 7 of the Constitution.

13 Weekly Comp. of Pres. Doc. 1129 (Aug. 1, 1977).

Section 3 of the enacted H.R. 186, the International Navigational Rules Act of 1977 (P.L. 95–75; 91 Stat. 308–309), reads as follows:

SEC. 3. (a) The President is authorized to proclaim the International Regulations for Preventing Collisions at Sea, 1972 (hereinafter referred to as the "International Regulations"). The effective date of the International Regulations for the United States shall be specified in the proclamation and shall be the date as near as possible to, but no earlier than, the date on which the Convention on the International Regulations for Preventing Collisions at Sea, 1972 (hereinafter referred to as the "Convention"), signed at London, England, under date of October 20, 1972, enters into force for the United States. The International Regulations proclaimed shall consist of the rules and other annexes attached to the Convention.

(b) The proclamation shall include the International Regulations and shall be published in the Federal Register. On the date specified in the proclamation, the International Regulations shall enter into force for the United States and shall have effect as if enacted by statute.

(c) Subject to the provisions of subsection (d) hereof, the President is also authorized to proclaim any amendment to the International Regulations hereafter adopted in accordance with the provisions of article VI of the Convention, and to which the United States does not object. The effective date of the amendment shall be specified in the proclamation and shall be in accordance with the provisions of the said article VI. The proclamation shall include the adopted amendment and shall be published in the Federal Register. On the date specified in the proclamation, the amendment shall enter into force for the United States as a constituent part of the International Regulations, as amended, and shall have effect as if enacted by statute.

(d) (1) Upon receiving a proposed amendment to the International Regulations, communicated to the United States pursuant to clause 3 of article VI of the Convention, the President shall promptly notify the Congress of the proposed amendment. If, within sixty days after receipt of such notification by the Congress, or ten days prior to the date under clause 4 of article VI for registering an objection, whichever comes first, the Congress adopts a resolution of disapproval, such resolution shall be transmitted to the President and shall constitute an objection by the United States to the proposed amendment. If, upon receiving notification of the resolution of disapproval, the President has not already notified the Inter-Governmental Maritime Consultative Organization of an objection to the United States to the proposed amendment, he shall promptly do so. (2) For the purposes of this subsection, "resolution of disapproval" means a concurrent resolution initiated by either House of the Congress, the matter after the resolving clause of which is to read as follows: "That the (the concurring) does not favor the proposed amendment to the International Regulations for Preventing Collisions at Sea, 1972, relating to

and forwarded to the Congress by the President on .", the first blank space therein to be filled with the name of the resolving House, the second blank space therein to be filled with the name of the concurring House, the third blank space therein to be filled with the subject matter of the proposed amendment, and the fourth blank space therein to be filled with the day, month, and year.

(3) Any proposed amendment transmitted to the Congress by the President and any resolution of disapproval pertaining thereto shall be referred, in the House of Representatives, to the Committee on Merchant Marine and Fisheries, and shall be referred, in the Senate, to the Committee on Commerce, Science, and Transportation.

33 U.S.C. 1601.

Art. VI of the Convention, entitled Amendments to the Regulations, follows: 1. Any amendment to the Regulations proposed by a Contracting Party shall be considered in the Organization at the request of that Party.

2. If adopted by a two-thirds majority of those present and voting in the Maritime Safety Committee of the Organization, such amendment shall be communicated to all Contracting Parties and Members of the Organization at least six months prior to its consideration by the Assembly of the Organization. Any Contracting Party which is not a Member of the Organization shall be entitled to participate when the amendment is considered by the Assembly. 3. If adopted by a two-thirds majority of those present and voting in the Assembly, the amendment shall be communicated by the Secretary-General to all Contracting Parties for their acceptance.

4. Such an amendment shall enter into force on a date to be determined by the Assembly at the time of its adoption unless, by a prior date determined by the Assembly at the same time more than one-third of the Contracting Parties notify the Organization of their objection to the amendment. Determination by the Assembly of the dates referred to in this paragraph shall be by a two-thirds majority of those present and voting.

5. On entry into force any amendment shall, for all Contracting Parties which have not objected to the amendment, replace and supersede any previous provision to which the amendment refers.

6. The Secretary-General shall inform all Contracting Parties and Members of the Organization of any request and communication under this Article and the date on which any amendment enters into force.

The Report submitted by Chairman John M. Murphy of the Merchant Marine and Fisheries Committee of the House of Representatives concerning H.R. 186 noted that on Oct. 10, 1976, President Ford vetoed H.R. 5446, a bill to implement the Convention, substantially because of a provision that permitted either the Senate or House of Representatives to veto with "a bare majority" a proposed amendment to the Convention's regulations. H. Rept. No. 95-447, 95th Cong., 1st Sess. 4(1977). Chairman Murphy's House Report indicates further that H.R. 186 is "substantially identical" to H.R. 5446 except that "the method for congressional disapproval of proposed amendments was changed" to "a concurrent resolution of both Houses . . . .”

For further information concerning H.R. 5446 and an Executive order to implement the Convention, see the 1976 Digest, Ch. 7, § 12, pp. 394-395. For information concerning the International Navigational Rules Act of 1977, see post, Ch. 7, § 12, pp. 630–633.

Multilateral Conventions

Adopting an Additional Authentic Language Text

On September 30, 1977, Betty C. Dillon, Chief of the U.S. Delegation to the 22nd Session of the International Civil Aviation Organization (ICAO) Assembly, and William M. McQuade, U.S. Delegate to the International Conference (Conference) on the Authentic Russian Text of the Convention on International Civil Aviation, jointly signed for the United States a protocol established by the Conference for the purpose of adopting an authentic Russian language text of the Convention on International Civil Aviation done on December 7, 1944 (Convention) (TIAS 1591; 61 Stat. 1180; Bevans 944; 15 UNTS 295; entered into force for the United States on April 14, 1947). The Full Power authorizing this joint signing indicated that this protocol amending the Convention would be transmitted to the President for ratification by and with the advice and consent of the U.S. Senate.

The U.S. Position Paper to this Conference indicates how this Protocol, prepared by an ICAO Working Group composed of representatives of Czechoslovakia, Costa Rica, Yugoslavia, France, and the Soviet Union, would amend the Convention by providing for a Russian language text in addition to the previously existing English, French, and Spanish texts and how another protocol agreeing upon the Russian language text developed by the Conference would be required:

Three distinct steps are essential to the establishment of the authentic Russian language text:

(1) A text in the Russian language of the Chicago Convention, as well as all its amendments to date, must be developed which has the