網頁圖片
PDF
ePub 版

jeopardized because of institutional conflict between the two Houses. While the exclusion from the coverage of S. Res. 24 of agreements expressly authorized by statute somewhat mitigates this concern, it does not eliminate it. In this regard it may be noted that Congressman Zablocki, Chairman of the House International Relations Committee, in a letter to the Secretary of State, characterized S. Res. 24 as an "attempt to exclude the House from the approval process of all major agreements" and as "seriously out of step with the times and potentially divisive." I have enclosed a copy of Chairman Zablocki's letter.

The term "expressly" in section 2(c) (2) of S. Res. 24 also causes difficulty. Many statutes assume by their terms (rather than expressly authorize) executive agreements on a given subject, or authorize an international program that necessarily entails international agreements. An example is the Peace Corps Act, 22 U.S.C. 2501-2523. A strict construction of the term "expressly" by the Senate might also result in conflict with the House, as well as engendering uncertainty on the part of the executive branch, and of foreign governments, about the extent of the President's authority to implement the clear intent of existing statutes.

It may be noted that the proposed S. Res. 24 does not exempt from its purview agreements concluded pursuant to the President's constitutional powers, powers which the Supreme Court of the United States has expressly upheld. The proposed resolution would thus create confusion as to the scope of the President's power to conclude agreements.

Section 2(c) (3) of S. Res. 24 does exempt agreements "entered into pursuant to emergency circumstances which jeopardize the national security." But while this phrase would apply to certain executive agreements authorized by the Constitution, it illustrates the difficulty of the proposal. An emergency, such as an epidemic of a communicable disease or an earthquake in a foreign nation, may well indicate or require an immediate international agreement, and yet be unrelated to the national security of the United States. We do not believe that such agreements should be subject to the procedure of S. Res. 24.

In enabling the Senate to render a judgment concerning the form of a particular agreement and in providing for a parliamentary mechanism to enforce that judgment, S. Res. 24 would create, in practice, a determining role for the Senate. We feel that such a procedure would be inconsonant with the intent of Article II, section 2 of the Constitution, which grants the President the power to "make" treaties by and with the advice and consent of the Senate. Under S. Res. 24, the Senate would, in effect, exercise the power to make the final determination as to the modality of international agreements. In 1972, after lengthy hearings on the subject of executive agreements, the Subcommittee on the Separation of Powers of the Senate Judiciary Committee wrote the following:

American constitutional law recognizes, in the Constitution itself and in judicial opinion, three basic types of international agreement. First in order of importance is the treaty, an international bilateral or multilateral compact that requires consent by a two-thirds vote

...

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.

86

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.

[blocks in formation]

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. . . .

*

*

422 F. Supp. 1286-1291 (footnotes omitted).

*

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 :

[ocr errors]

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).

« 上一頁繼續 »