We trust that the Commission intends to publicize these additional proceedings through appropriate means in Montana and will make provision for entertaining further information which other interested parties in the State may wish to provide to the Commission. A copy of this letter is being provided to the Department of External Affairs [of Canada].

Dept. of State File No. P77 0128-1510.

Art. IX of the Treaty Relating to the Boundary Waters and Questions arising along the Boundary between the United States and Canada signed on Jan. 11, 1909 (TS 548; 36 Stat. 2448; 12 Bevans 319; entered into force May 5, 1910), appears below:

ARTICLE IX

The High Contracting Parties further agree that any other questions or matters of difference arising between them involving the rights, obligations, or interests of either in relation to the other or to the inhabitants of the other. along the common frontier between the United States and the Dominion of Canada, shall be referred from time to time to the International Joint Commission for examination and report, whenever either the Government of the United States or the Government of the Dominion of Canada shall request that such questions or matters of difference be so referred.

The International Joint Commission is authorized in each case so referred to examine into and report upon the facts and circumstances of the particular questions and matters referred, together with such conclusions and recommendations as may be appropriate, subject, however, to any restrictions or exceptions which may be imposed with respect thereto by the terms of the reference.

Such reports of the Commission shall not be regarded as decisions of the questions or matters so submitted either on the facts or the law, and shall in no way have the character of an arbitral award.

The Commission shall make a joint report to both Governments in all cases in which all or a majority of the Commissioners agree, and in case of disagreement the minority may make a joint report to both Governments, or separate reports to their respective Governments.

In case the Commission is evenly divided upon any question or matter referred to it for report, separate reports shall be made by the Commissioners on each side to their own Government.

On Feb. 17, 1977. Karl K. Jonietz, a Foreign Service Officer serving in the Office of Canadian Affairs of the Dept. of State, gave further definition to the U.S. view of the proper role of government representatives before the International Joint Commission (IJC) in a letter he wrote to John Blane in the Office of International Activities of the Environmental Protection Agency (EPA). Mr. Jonietz outlined as well U.S. "practice as regards the testimony of various agencies of the executive branch, including this Department, at public hearings held by the International Joint Commission." Portions of his letter follow:

You are . . . aware that reports presented to governments, pursuant to joint references under article IX of the Boundary Waters Treaty of 1909, are advisory. The purpose of these references is to obtain an impartial, binational, and technically qualified examination of and recommendations concerning the international aspects of . . . questions along the boundary. As such, reports of the IJC are always the subject of subsequent review and evaluation by interested agencies of the United States Government as well as negotiations between the two Governments.

In light of the nature and purpose of the article IX Reference process, it would be inappropriate for agencies of the U.S. Government, including this Department or EPA, to comment substantively on matters before the Commission in public hearings or otherwise, except in the most unusual circumstances. In such situations, or on occasions on which the Commission may seek further guidance from governments, U.S. Government counsel to the

International Joint Commission would present the position of this Government, taking into account as appropriate the views of all interested agencies. The IJC holds public hearings to permit the general public, State and Provincial governments, and other interested parties to make their views known regarding the matters before the Commission. The preliminary reports of Commission boards are not, technically, before the Governments, but rather before the Commission itself to consider in preparing its own final Report to Governments. In the case of the hearings scheduled for the Garrison Diversion Unit, EPA, along with all other interested Federal agencies, will have an opportunity to comment on and participate in the U.S. assessment of the Commission's Report to Governments, which is scheduled to be available in June 1977. EPA will, of course, play a key role on the U.S. negotiating team in any subsequent discussions with the Government of Canada, which will be based upon an agreed U.S. Government position. Representatives of interested Federal agencies may, of course, attend and observe the Commission's hearings.

Dept. of State File No. P77 0128-1512.

*

*

For further information concerning the International Joint Commission, see ante, Ch. 2, § 4B, pp. 34–37; post, Ch. 7, § 11, pp. 612-630.

G. LEGAL EFFECTS OF ACTS

U.N. Resolutions and Declarations

In his November 11, 1977, statement concerning the Report of the International Law Commission on Its Twenty-Ninth Session, Robert Rosenstock, U.S. Representative to the Sixth Committee (Legal) at the United Nations, described, inter alia, how a U.N. General Assembly resolution may in exceptional cases contribute to the development of international law. Mr. Rosenstock's comments were made while discussing the Commission's proposed draft article 22, entitled "Newly Independent States," on succession of states in respect of matters other than treaties. Mr. Rosenstock took exception to the Commission's commentary in its Report suggesting that the U.N. General Assembly had "developed" the principle of permanent sovereignty over natural resources by passing Resolution 3201, entitled "Declaration on the Establishment of a New International Economic Order," and Resolution 3281, entitled the "Charter of Economic Rights and Duties of States."

Portions of Mr. Rosenstock's statement follow:

In paragraphs 61 and 62 of the commentary on article 22 of the draft, the Commission discusses the principle of permanent sovereignty over natural resources. In paragraph 61, it correctly quotes the pertinent passage of the International Covenants on Economic, Social and Cultural Rights, and on Civil and Political Rights. However, in paragraph 62, it then proceeds to make this startling statement: "The General Assembly has only recently reiterated and developed that principle"-and in support of that conclusion quotes from General Assembly Resolution 3201 of the Sixth

Special Session and the Charter of Economic Rights and Duties of States.

My government finds this statement startling because it is open to the interpretation that this General Assembly, by its adoption of controverted resolutions, "develops" principles which arguably are of a legal character. That is an interpretation of the powers and practice of this Assembly which is not accepted by my government, and which does not conform to the United Nations Charter or to international law.

This Assembly is not a lawmaking body. Its resolutions, in the ordinary course, do not enact, formulate or alter international law, progressively or regressively. In the exceptional cases in which a General Assembly resolution may contribute to the development of international law, it can do so only if the resolution gains virtually universal support, if the Members of the General Assembly share a lawmaking or law-declaring intent-and if the content of that resolution is reflected in general state practice. The General Assembly Resolution on the Principles of International Law Concerning Friendly Relations and Cooperation Among States may be an authoritative interpretation of international law, adopted as it was unanimously and stated as it was by many Members to be such-at any rate, if it is supported by state practice. But the resolutions of the Sixth Special Session cannot be said to have developed international law on the points at issue, for, on those very points, my government and other Members of this Assembly expressed the most vigorous and precise disagreement. My government and others took particular care to state that those resolutions had no effect on the international law of matters which are comprehended by the concept of permanent sovereignty over natural wealth and resources. As to the Charter of Economic Rights and Duties of States, the situation, if anything, is clearer still. Sixteen states voted against key provisions of the article on permanent sovereignty and expropriation and nineteen voted for a substitute Western amendment; seventeen industrialized democracies voted for its deletion of article 16. To suggest that those resolutions "developed" the principle of permanent sovereignty is accordingly baffling, at any rate if the Commission is using the term in the sense of article 13 of the United Nations Charter.

For these reasons, my government takes serious exception to this passage of the Commission's report, which we find unnecessary as well as erroneous. Both codification and progressive development must proceed from a firm basis.

Press Release USUN-112 (77), Nov. 11, 1977, pp. 16-18.

For the text of art. 22 of the draft convention on state succession and related information, see ante, Ch. 2, § 2, pp. 14-15.

Par. 52 of the Report, found on p. 126, indicates that the Commission is preparing draft articles on succession of states in respect of matters other than treaties even though the Commission has not yet decided that a convention should be concluded:

As in the case of the codification of other topics by the Commission, the form to be given to the codification of succession of states in respect of matters other than treaties cannot be determined until the study of the subject has been completed. The Commission, in accordance with its Statute, will then formulate the recommendations it considers appropriate. Without prejudging those recommendations, it has already decided to set out its study in the form of draft articles, since it believes that this is the best method of discerning or developing the rules of international law in the matter. The draft is being prepared in a form which would permit its use as a basis for a convention if it were decided that a convention should be concluded.

The texts of pars. 61 and 62 of the Commission's commentary concerning art. 22 are reproduced below from pp. 218 and 219 of the Report of the International Law Commission on the Work of Its Twenty-Ninth Sess., May 9-July 29, 1977, GAOR: Thirty-second sess., Supp. No. 10 (A/32/10), 1977:

(61) The above general considerations concerning the capacity to pay must be viewed in relation to the developments occurring in contemporary international relations concerning the principle of the permanent sovereignty of every people over its wealth and natural resources, which constitutes a fundamental element in the right of peoples to self-determination. That principle has been strongly affirmed not only in resolutions of the General Assembly [See, for example, General Assembly Resolutions 626 (VII) of December 21, 1952, 1803 (XVII) of December 14, 1962, 2158 (XXI) of November 25, 1966, 2386 (XXIII) of November 19, 1968, and 2692 (XXV) of December 11, 1970. See also Economic and Social Council Resolutions 1737 (LIV) of May 4, 1973, and 1956 (LIX) of July 25, 1975.]. but also in treaties adopted within the framework of the United Nations. Thus paragraph 2 of article 1 of both the International Covenant on Economic, Social and Cultural Rights reads as follows:

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. [Annex to General Assembly Resolution 2200 (XXI) of December 16, 1966.]

(62) The General Assembly of the United Nations has only recently reiterated and developed that principle. By Resolution 3201 (S-VI) of May 1, 1974, entitled "Declaration on the Establishment of a New International Economic Order," the General Assembly declared that that order should be founded on full respect for various principles including the following:

(e) Full permanent sovereignty of every state over its natural resources and all economic activities . . .;

(f) The right of all states, territories and peoples under foreign occupation, alien and colonial domination or apartheid to restitution and full compensation for the exploitation and depletion of, and damage to, the natural resources and all other resources of those states, territories and peoples; In Resolution 3202 (S-VI) of the same day, entitled "Program of Action on the Establishment of a New International Economic Order," the General Assembly stated that "All efforts should be made: (a) to defeat attempts to prevent the free and effective exercise of the rights of every state to full and permanent sovereignty over its natural resources . . .". The Charter of Economic Rights and Duties of States, adopted by the General Assembly as Resolution 3281 (XXX) of December 12, 1974, provides in article 2, paragraph 1, that: "Every state has and shall freely exercise full permanent sovereignty including possession, use and disposal, over all its wealth, natural resources and economic activities." Article 16, paragraph 1, of that Charter states:

It is the right and duty of all states, individually and collectively, to eliminate colonialism . . . neo-colonialism . . . and the economic and social consequences thereof, as a prerequisite for development. States which practice such coercive policies are economically responsible to the countries, territories and peoples affected for the restitution and full compensation for the exploitation and depletion of, and damages to, the natural and all other

resources of those countries, territories and people. It is the duty of all states to extend assistance to them.

U.N.G.A. Res. 2625 (XXV), entitled "Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations," was adopted on Oct. 24, 1970.

A portion of art. 13 of the U.N. Charter appears below:

1. The General Assembly shall initiate studies and make recommendations for the purpose of :

a. promoting international cooperation in the political field and encouraging the progressive development of international law and its codification;

For other portions of Mr. Rosenstock's statement, see ante, Ch. 2. § 2, pp. 12–14 and post, Ch. 9, § 1, pp. 672-674. For further information on the legal effects of U.N.G.A. resolutions, see post, Ch. 9, § 2, pp. 675–683.

Puerto Rico

Self-Governing and Non-Self-Governing
Territories

Self-Determination

On January 2, 1977, Maurice A. Ferre, Mayor of Miami, Florida, delivered a speech on behalf of Jimmy Carter, President-elect of the United States, on the occasion of the inauguration of Carlos Romero Barcelo as Governor of Puerto Rico. The speech stressed that the Carter Administration would fully support Puerto Rico's right to selfdetermination regardless of the choice that Puerto Rico might make in this regard. Portions of the text of the speech follow:

Too long have some sectors of Washington approached Puerto Rico on a dividing "we and you" basis, forgetting that Puerto Rico is an island where over three million American citizens live. As President of the United States, you can be assured that I will be conscious of the needs of all American citizens, wherever they may be.

If we in the United States are to continue to live in a free, pluralistic society, we must be ever aware of the diversity of our national character. If this cultural pluralism is applicable to other minority groups, then it is valid for our citizens from Puerto Rico, both those on the island and the almost two million Puerto Ricans on the mainland. Of course, as Puerto Ricans, you have, can and should continue to enjoy your own cultural identity and history.

The Constitution of the United States does not distinguish between citizens. We do not have in our country first and second class citizens. We are all Americans, without distinction of color, creed, sex, religion and . . . without distinction of language. We must