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requires the advice and consent of the Senate." (Emphasis added.) At the least, Monroe envisaged the possibility of executive agreements concluded by the President pursuant to his independent constitutional powers. He certainly treated the agreement as one he might properly conclude without the advice and consent of the Senate.
Indeed, the historical evidence demonstrates that President Monroe did not think the agreement was a treaty at all. In the Memoirs of John Quincy Adams, IV, 41-42, under date of January 14, 1818, there appears the following statement:
Met and spoke to Mr. Bagot this morning on my way to the President's. He asked me if it was the intention of the President to communicate to Congress the letters which had passed between the Secretary of State and him (Bagot) containing the arrangements concerning armaments on the Lakes, which he said was a sort of treaty. I spoke of it to the President, who did not think it necessary that they should be communicated. (Quoted in 2 Miller, Treaties and Other International Acts of the United States of America, p. 647.)
There is also strong historical evidence that President James Madison, as well as Monroe, did not consider the agreement to be a treaty. .
The Rush-Bagot agreement was . . . first proposed by President James Madison, who instructed his Secretary of State to come to an "immediate" agreement.
The Department of State, in a report to the Congress in 1892 on the history of the agreement, said that "The arrangement thus effected seems not to have suggested at the time any doubts as to its regularity or sufficiency, or as to the entire competence of the executive branch of the Government to enter into it and carry out its terms." (House of Representatives, 56th Cong., 1st Sess., Doc. No. 471, p. 14.)
The memorandum set forth further history of the Rush-Bagot agreement and the comments of legal authorities on the importance of contemporaneous construction. It concluded that practice developed during the administration of Presidents Washington, Adams, Madison and Monroe indicated that "they clearly approved
and acted upon the conviction that executive agreements are permitted by the Constitution.”
Dept. of State File L/T.
International Acts Not
STATE TERRITORY, JURISDICTION, AND
State Territory and Territorial
Geraldeen G. Chester, attorney-adviser in the Office of the Legal Adviser, Department of State, wrote a memorandum on April 20, 1976, analyzing United States v. Husband R. (Roach), 453 F.2d 1054 (1971), cert. den. 406 U.S. 935 (1972), in relation to the jurisdiction of the United States in the Canal Zone. The following is an excerpt from her memorandum:
[T]he holding in the case is that the Congress has the authority to empower the Governor of the Canal Zone to issue traffic regulations for public highways within the Zone, and that the issuance of a regulation prohibiting on certain roads any bus service which had not been licensed to operate on those routes was not in violation of due process. The case can only be cited as a precedent for those propositions. In the course of the decision, the court states: "The Canal Zone is an unincorporated territory of the United States." Later the Court goes on: "Congress has complete and plenary authority to legislate for an unincorporated territory such as the Canal Zone, pursuant to art. IV. sec. 3. cl. 2 of the Constitution, empowering it 'to dispose of and make all needful rules and regulations respecting the Territory or other property belonging to the United States'."
Just as in Wilson v. Shaw [204 U.S. 24 (1907)], the Court here is equating the Zone with a territory of the United States in the context of establishing the authority of Congress to regulate and prescribe activities there. The Canal Zone has been treated in various ways for domestic legislative purposes. The Canal Zone is considered to be an organized territory of the U.S. for purposes of extradiction (37 Stat. 569, 48 USC 1330). It is treated as foreign territory for purposes of customs duties (33 Stat. 843, 19 USC 126) and its ports are considered foreign ports for purposes of the
transportation of mail (Luckenbach Steamship Co. v. U.S., 280 U.S. 173 (1930)).
None of these determinations for purposes of domestic law determine or are intended to affect the international status of the Canal Zone. The plenary legislative authority of the Congress over the Canal Zone is derived from our rights under article III of the 1903 Treaty to act as if sovereign. Thus, the Court's recognition that Congress has jurisdiction to legislate for the area is consistent with the status of the Canal Zone as territory of Panama under the jurisdiction of the U.S.
Dept. of State File No. P76 0061-2133. Article III of the U.S.-Panama treaty of 1903 (33 Stat. 2234; TS 431; 10 Bevans 663) provides:
The Republic of Panama grants to the United States all the rights, power and authority within the zone mentioned and described in Article II of this agreement and within the limits of all auxiliary lands and waters mentioned and described in said Article II which the United States would possess and exercise if it were the sovereign of the territory within which said lands and waters are located to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights, power or authority.
The U.S. Senate, on July 26, 1976, unanimously agreed to a resolution (S. Res. 319) expressing the sense of the Senate that "the signing in Helsinki of the Final Act of the Conference on Security and Cooperation in Europe did not change in any way the longstanding policy of the United States on nonrecognition of the illegal seizure and annexation by the Soviet Union of the three Baltic nations of Estonia, Latvia, and Lithuania."
The text of the resolution follows:
Whereas the three Baltic nations of Estonia, Latvia, and Lithuania have been illegally occupied by the Soviet Union since World War II; and
Whereas the Soviet Union appears to interpret the Final Act of the Conference on Security and Cooperation in Europe, signed at Helsinki, as giving permanent status to the Soviet Union's illegal annexation of Estonia, Latvia, and Lithuania, and
Whereas, although neither the President nor the Department of State issued a specific disclaimer in conjunction with the signing of the Final Act at Helsinki to make clear that the United States still does not recognize the forcible conquest of those nations by the Soviet Union, both the President in his public statement of July 25, 1975, and the Assistant Secretary of State for European Affairs in his testimony before the Subcommittee on International Political and Military Affairs of the House Committee on International Relations stated quite explicitly that the longstanding official policy of the United States on nonrecognition of the Soviet Union's forcible incorporation and annexation of the Baltic nations is not affected by the results of the European Security Conference: Now, therefore, be it
Resolved, That, notwithstanding any interpretation which the Soviet Union or any other country may attempt to give to the Final Act of the Conference on Security and Cooperation in Europe,
signed in Helsinki, it is the sense of the Senate (1) that there has been no change in the longstanding policy of the United States on nonrecognition of the illegal seizure and annexation by the Soviet Union of the three Baltic nations of Estonia, Latvia, and Lithuania, and (2) that it will continue to be the policy of the United States not to recognize in any way the annexation of the Baltic nations by the Soviet Union.
Cong. Rec., Vol. 122, No. 112, July 26, 1976. p. S12516 (daily ed.). For the text of the Final Act of the Conference on Security and Cooperation in Europe (CSCE), signed at Helsinki on Aug. 1, 1975, by representatives of 35 states, including the United States. see Dept. of State Bulletin, Vol. LXXIII, No. 1888, Sept. 1, 1975, pp. 323-350.
The Embassy of the Soviet Union, in a note dated April 6, 1976, to the Department of State, protested that the application to Berlin (West) of the Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Seabed and the Ocean Floor (TIAS 7337; 23 UST 701) by the Federal Republic of Germany was unlawful and a violation of the Quadripartite Agreement (TIAS 7551; 24 UST 285). The note was in response to a depositary communication from the Department of State that the Federal Republic of Germany had deposited its ratification of the treaty on November 18, 1975, with application to Berlin (West).
The Department of State sent a reply note to the Embassy of the Soviet Union on August 4, 1976, on behalf of the Governments of the United States, the United Kingdom, and France, in which it stated:
In a communication to the Government of the Union of Soviet Socialist Republics which is an integral part (Annex IV A) of the Quadripartite Agreement of September 3, 1971, the three powers confirmed that, provided matters of security and status are not affected and provided the extension is specified in each case, international agreements and arrangements entered into by the Federal Republic of Germany may be extended to the Western Sectors of Berlin in accordance with established procedures. For its part, the Government of the Union of Soviet Socialist Republics. in a communication to the Governments of the three powers, which is similarly an integral part (Annex IV B) of the Quadripartite Agreement of September 3, 1971, affirmed that it would raise no objection to such extension.
The established procedures referred to above, which were endorsed in the Quadripartite Agreement, are designed, inter alia, to afford the authorities of the three powers the opportunity to ensure that the treaties concluded by the Federal Republic of Germany which are to be extended to the Western Sectors of Berlin are extended in such a way that matters of security and status are not affected. When authorizing the extension of the Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other