Crandall, who has studied the matter more closely than any other scholar, takes no absolute position on the issue, but does state the practice in a manner implying legal obligation on the part of the Congress to vote the required funds. In 1916 he wrote:

Stipulations involving the payment of money have regularly been made without qualification or reservation as to any action thereon by Congress, and have been ratified by the President upon the advice and consent of the Senate only. When so ratified they have been considered by this government as also by the other contracting parties as valid and definitively concluded, and Congress has never failed to vote the necessary appropriation. (At p. 182.)

Charles Cheney Hyde, in his 1922 work entitled International Law Chiefly as Interpreted and Applied by the United States, wrote:

If it be acknowledged that a treaty is not invalid by reason of the circumstance that performance necessitates the exercise of the legislative function which, under the constitutional law of a contracting state, is confided to the legislative department of the government, it would seem to follow that the duty to effect performance is none the less obligatory. In a word, it is not unreasonable to assert that when, for example, the United States concludes a treaty contemplating payment by it for the cession to itself of territory, the nation incurs a legal obligation to make payment, and incidentally agrees that the Congress will not fail to make the requisite appropriation. This means that the treaty serves to render it inequitable for either branch of the Congress to exercise its constitutional power not to take such action. It is significant that the Congress has never failed to appropriate funds in accordance with the terms of a perfected convention. (Vol. II, pp. 51-52.)

The 1965 Restatement (Second) of the Foreign Relations Law of the United States appears to adopt the Madison approach to the problem. Section 141 (3) of the Restatement, which is part of a section dealing with the effect of a treaty as United States domestic law, provides in relevant part:

A treaty cannot be self-executing . . . to the extent that it involves governmental action that under the Constitution can be taken only by the Congress. (At p. 432.)

In its commentary on this subsection, the Restatement says:

Even though a treaty is cast in the form of a self-executing treaty, it does not become effective as domestic law in the United States upon becoming binding between the United States and the other party or parties, if it deals with a subject matter that by the Constitution is reserved exclusively to Congress. For example, only the Congress can appropriate money from the treasury of the United States. (At p. 435.)

The illustration provided by the Restatement is the case of the purchase of Alaska from Russia in 1867...

Professor Louis Henkin, in his 1972 work Foreign Affairs and the Constitution, refers to the question, citing certain portions of the debate on the Jay Treaty, and states the following:

Like some other constitutional debates this one, too, has not been resolved in principle. Hamilton's position would obviously make for a more efficient system, for otherwise treatymakers might find that they had negotiated treaties but could not assure that the United States would carry them out; . . . Presidents would have to consult the House of Representatives and perhaps obtain its formal consent prior to ratification. Separation and checks-and-balances, on the other hand, were dear to the Constitutional Fathers, and many of them were still on the scene when implementation of the Jay Treaty passed the House only barely and after bitter debate. Since then, though Congressmen have continued to assert their power and right not to do so, Congresses have not in fact failed to carry out international obligations. They have responded, no doubt, to a sense of duty to carry out what the treatymakers promised, to a reluctance to defy and confront the President especially when he can no longer retreat, to an unwillingness to make the American system appear undependable and ludicrous. But the independence of the legislative process (subject only to the regular Presidential veto) has given Congress opportunities to interpret the need for implementation and to shape and limit it in important details; Congress has not always given the President exactly the laws he asked for or as much money as he said a treaty required. And Congress has on various occasions later enacted laws inconsistent with treaty obligations. (At p. 162.)

In a note to the above passage, Henkin distinguishes the capacity of the Congress to override a treaty through the regular legislative process from the capacity to refuse to implement a treaty. He says:

The power of Congress to enact domestic legislation inconsistent with an earlier treaty is deemed an exercise of its independent power to make domestic laws; and usually such enactments come from a later Congress. To say that Congress can refuse to implement a treaty in the first instance would destroy the independence of the Treaty Power, and give the House of Representatives a voice in treatymaking not intended for it; it would also put an unusual premium on self-executing treaties .. (At p. 162.)

C. Conclusion

The consistent practice since 1792 has been for Congress to appropriate funds stipulated in a treaty. Whether the practice has resulted from a sense of legal or political obligation is unclear.

Dept. of State File No. P76 0149-2461.

When the Senate gave its advice and consent on June 21, 1976, to the Treaty of Friendship and Cooperation between the United States and Spain, signed January 24, 1976 (TIAS 8360; 27 UST; entered into force September 21, 1976), it did so subject to a five-paragraph declaration. The fifth paragraph declared:

(5) the sums referred to in the Supplementary Agreement on Cooperation Regarding Materiel for the Armed Forces and Notes of January 24, 1976, appended to the Treaty, shall be made

available for obligation through the normal procedures of the Congress, including the process of prior authorization and annual appropriations and shall be provided to Spain in accordance with the provisions of foreign assistance and related legislation.

The report of the Senate Committee on Foreign Relations (Senate Executive Report 94-25) furnished the following explanation concerning its decision to require statutory authorization for the appropriation of the necessary funding for the treaty.

The most difficult problem regarding the Treaty... concerned the phrasing of the Treaty articles taken in conjunction with the normal procedures of the Congress. . . . A highly unusual, if not unique, situation is created by a treaty which after ratification appears to commit the Congress to provide sums of money for various purposes over a five-year period. Committee members devoted much time to meetings with executive branch officials in an effort to find a way out of the impasse. At the May 18 meeting the Committee believed it had before it a feasible approachpresented by Senator Clark-set forth as the fifth paragraph of the declaration (discussed below) incorporated in the single resolution of ratification. Thereupon the resolution was put to a vote and was approved 12 to 2....

The fifth and final paragraph of the declaration is of the utmost significance. When ratified, the Treaty will constitute a commitment by the United States to carry out the undertakings specified therein, including those with regard to financial assistance to Spain. According to Supplementary Agreement number 7 on cooperation regarding materiel for the Spanish armed forces, United States security assistance will be subject to the appropriation of the necessary funds by the United States Congress. In view of the established procedures for appropriating security assistance funds only pursuant to statutory authorization, the Committee decided that this Treaty could not be a substitute for authorizing legislation. Rather, the Committee intends to deal with funding of the Treaty commitments for foreign assistance and military sales in the regular foreign assistance authorization and appropriation legislation. To emphasize this intent, the Committee added to the consent resolution appropriate language to make it clear that funds will be made available to carry out the Treaty from year to year through the normal appropriations process, including prior authorization procedures.

As regards the conditions under which such assistance will be furnished to Spain, the Committee notes the Treaty's stipulation that "the undertakings of the Government of the United States provided for in this Agreement [supplementary agreement #7 which establishes the commitment of military assistance] will be carried out in accordance with, and subject to, applicable provisions of U.S. law." In the Committee's understanding, as confirmed by Administration officials, this means that all military sales and related assistance furnished pursuant to the Treaty, other than that for the joint use aircraft control and warning system provided directly from the Defense Department budget,

will be made available to Spain only in accordance with the provisions of the Foreign Assistance Act of 1961, as amended; the Foreign Military Sales Act; and related legislation applicable to other recipients of such sales and assistance. Thus, the Treaty does not supersede the terms and conditions specified in these statutes, including conditions of eligibility. The Committee has included appropriate language emphasizing this provision of the Treaty in the consent resolution it has framed for Senate approval.

P.L. 94-537 (90 Stat. 2498), approved Oct. 18, 1976, authorized the obligation and expenditure of funds to implement for fiscal year 1977 the provisions of the Treaty of Friendship and Cooperation between the United States and Spain signed Jan. 24, 1976. Specific amounts totalling $36 million were authorized for grant military assistance, security supporting assistance, international military education and training, and military sales guarantees. In addition, the Act specifies that the financing of an aircraft control and warning network is to be from available appropriations of the Dept. of Defense and provides for the transfer and financing of certain naval vessels and aircraft for Spain. See also S. Rept. 94-941 and H. Repts. 94-1393 and 1704.

Interpretation

The issue before the Court in Aikins v. United States, 530 F.2d 1330 (1976), was whether the territorial jurisdiction of the United States for the purpose of enforcing Federal law against importation of heroin should be governed by the boundary parallel specified in the Gadsden Treaty (TS 208; 10 Stat. 1031; 9 Bevans 812) or by a line of monuments on the land.

The Court of Appeals held that where the treaty's language clearly indicated that both the United States and Mexico intended to be bound by the line marked "out upon the land," the Commission of the crime of importing heroin at an inspection station north of the line marked by monuments occurred within the territorial jurisdiction of the United States even though such station was south of the parallel specified in the treaty as the boundary line. After describing the parallel of 31° 20' north as the boundary in the area of what is now Nogales, the Gadsden Treaty states:

[Elach of the two governments shall nominate one commissioner

by common consent the two thus nominated. . . may proceed to survey and mark out upon the land the dividing line stipulated by this article . . . . [T]hat line shall be alone established upon which the commissioners may fix, their consent in this particular being considered decisive and an integral part of this treaty, without necessity of ulterior ratification or approval and without room for interpretation of any kind by either of the parties contracting.

The dividing line thus established shall, in all time, be faithfully respected by the two governments, without any variation therein, unless of the express and free consent of the two . . . .

The Court stated that the language showed a clear intention to be

bound by the line fixed by the commissioners, and that this comported with the traditional means for resolving boundary disputes. It added:

To construe the treaty otherwise and accept petitioner's position would result in disruption of the affairs of both countries and the local inhabitants who have come to rely on the boundary as it was fixed by agreement more than a hundred years ago. Both the United States and Mexico agreed to the creation of the boundary as it now exists, neither has objected to it, and this court will not alter it.

Responsibility for Implementation

Treaties with Indians

John A. Boyd, an attorney in the Office of the Legal Adviser, Department of State, wrote a memorandum of law on August 20, 1976, in which he concluded that there is neither any substantial foreign relations responsibility nor any responsibility of the Department of State for the implementation of treaties concluded by the United States with American Indian tribes. He noted that even the Department of State's responsibility for publishing treaties has been circumscribed by legislation giving responsibility for the publication of treaties with American Indians to the Secretary of the Interior. 25 U.S.C. 1341. His memorandum contained the following analysis:

In the case of Cherokee Nation v. Georgia, 5 Pet. 1 (1821), Chief Justice Marshall when construing the second section of the third article of the Constitution concerning" controversies' 'between a State or the citizens thereof, and foreign states, citizens, or subjects'" answered in the negative the following question:

Is the Cherokee nation a foreign state in the sense in which that term is used in the Constitution? Id. 15.

Marshall's reasoning focused on the sovereignty and dominion of the United States over the Indians:

They [the Indians] may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. . . . They and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a political connection with them, would be considered by all as an invasion of our territory, and an act of hostility. Id. 16.

In 1871 a statute reflecting this point of view was enacted:

No Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may