America, signed at Saipan February 15, 1975, contains extensive provisions concerning the respective approval procedures of the Government of the Northern Mariana Islands and the Government of the United States, the varying effective dates assigned to the provisions of the Covenant, and the effectiveness of the Constitution of the Northern Mariana Islands provided for in the Covenant.

Sections 1001-1004 of Art. X of the Covenant read as follows:

Section 1001.

(a) This Covenant will be submitted to the Mariana Islands District Legislature for its approval. After its approval by the Mariana Islands District Legislature, this Covenant will be submitted to the people of the Northern Mariana Islands for approval in a plebiscite to be called by the United States. Only persons who are domiciled exclusively in the Northern Mariana Islands and who meet such other qualifications, including timely registration, as are promulgated by the United States as administering authority will be eligible to vote in the plebiscite. Approval must be by a majority of at least 55% of the valid votes cast in the plebiscite. The results of the plebiscite will be certified to the President of the United States.

(b) This Covenant will be approved by the United States in accordance with its constitutional processes and will thereupon become law.

Section 1002. The President of the United States will issue a proclamation announcing the termination of the Trusteeship Agreement, or the date on which the Trusteeship Agreement will terminate, and the establishment of the Commonwealth in accordance with this Covenant. Any determination by the President that the Trusteeship Agreement has been terminated or will be terminated on a day certain will be final and will not be subject to review by any authority, judicial or otherwise, of the Trust Territory of the Pacific Islands, the Northern Mariana Islands or the United States.

Section 1003. The provisions of this Covenant will become effective as follows, unless otherwise specifically provided:

(a) Sections 105, 201-203, 503, 504, 606, 801, 903 and Article X will become effective on approval of this Covenant;

(b) Sections 102, 103, 204, 304, Article IV, Sections 501, 502, 505, 601-605, 607, Article VII, Sections 802-805, 901 and 902 will become effective on a date to be determined and proclaimed by the President of the United States which will be not more than 180 days after this Covenant and the Constitution of the Northern Mariana Islands have both been approved; and

(c) The remainder of this Covenant will become effective upon the termination of the Trusteeship Agreement and the establishment of the Commonwealth of the Northern Mariana Islands.

Section 1004.

(a) The application of any provision of the Constitution or laws of the United States which would otherwise apply to the Northern Mariana Islands may be suspended until termination of the Trusteeship Agreement if the President finds and declares that the application of such provision prior to termination would be inconsistent with the Trusteeship Agreement.

(b) The Constitution of the Northern Mariana Islands will become effective in accordance with its terms on the same day that the provisions of this Covenant specified in Subsection 1003(b) become effective, provided that if the President finds and declares that the effectiveness of any provision of the Constitution of the Northern Mariana Islands prior to termination of the Trusteeship Agreement would be inconsistent with the Trusteeship Agreement such provision will be ineffective until termination of the Trusteeship Agreement. Upon the establishment of the Commonwealth of the Northern Mariana Islands the Constitution will become effective in its entirety in accordance with its terms as the Constitution of the Commonwealth of the Northern Mariana Islands.

The full text of the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America may be found in the Cong. Rec., Vol. 121, No. 43, Mar. 17, 1975, pp. 4083-4091 (daily ed.), and in U.N. Doc. T/1759, Mar. 10, 1975. For a summary of the Covenant, see Ch. 2, § 6, ante, pp. 97-103.

Depositary Functions

The United States Government, as a depositary government for the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) (TIAS 6839; 21 UST 483; entered into force for the United States March 5, 1970), did not undertake to circulate to the signatory and acceding states a note received by the Department of State from the Embassy of Italy in Washington, setting forth certain observations of the Government of Italy with respect to the application of the prohibitions of Articles I and II of the Treaty. The note was delivered to the Bureau of European Affairs of the Department on May 2, 1975. Earlier that day the Italian Government had deposited its instrument of ratification of the NPT in a ceremony at which instruments of ratification were also deposited by Belgium, the Federal Republic of Germany, Luxembourg, and the Netherlands. The Department's note of acknowledgment, dated June 6, 1975, stated in part:

The Department of State wishes to advise the Embassy of Italy that this note will not be circulated by the Government of the United States of America to the governments of other parties to the Treaty on the Non-Proliferation of Nuclear Weapons, since the United States Government did not receive the Embassy's note in its capacity as depositary government pursuant to the Government of Italy's ratification of the Treaty.

Dept. of State File No. P75 0091-1911.

For a U.S. observation with respect to the content of the Italian Embassy's note and for U.S. views on an identical declaration made by the Italian Government in depositing its instruments of ratification of the NPT in London and Moscow, see post, Ch. 14, § 7, pp. 843-845.

§ 2

Observance, Application and Interpretation

Self-executing Treaties

Michael G. Kozak, Attorney-Adviser in the Office of the Legal Adviser, Department of State, wrote a memorandum on November 12, 1975, concerning the authority to dispose of property interests

of the United States by treaty, absent separate legislative authority. The following is an excerpt from his memorandum:

The Executive position,. expressed in testimony by the Departments of State and Justice before the Panama Canal Subcommittee in . . . 1971 . . .,is that the treatymaking power of the President, acting with the advice and consent of the Senate, is coextensive with the legislative authority of the Congress in those areas which are not specified in the Constitution as clearly within the exclusive jurisdiction of the Congress. Article VI of the Constitution provides that the Constitution, the laws of the United States, and "all treaties . . . which shall be made under the authority of the United States shall be the supreme law of the land." Treaties must conform to the basic concepts of the Constitution and must deal with proper subjects for negotiations between countries. Such treaties, when drafted to be self-executing, take effect under Article VI without implementing legislation, except as to those areas exclusively within the power of the Congress, and supersede any prior inconsistent legislation.

Article IV, Section 3, Clause 2 of the Constitution provides, in part:

The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; . . .

This grant does not, under the executive branch view, give Congress exclusive power to deal with property, as the Constitution quite clearly does with the power to appropriate money. (Article I, Section 9,-"no money shall be drawn from the Treaty, but in consequence of appropriations made by law.") Therefore, the Executive holds the view that the treatymaking power of the President, with the advice and consent of the Senate, is concurrent with the legislative power of the Congress to dispose of property. In short, property may be disposed of either by legislation or by a self-executing treaty. .

Under this interpretation, real and personal property interests of the United States in Panama, including our interests in the Canal Zone, can be transferred to Panama by means of a self-executing treaty without implementing legislation. Of course, this interpretation does not foreclose the option of writing the treaty to require, or otherwise requesting, implementing legislation for the transfer of property interests without prejudice to the Executive view that it is not required under the Constitution.

Dept. of State File No. P75 0023-2040. On Nov. 29, 1971, Carl F. Salans, then Deputy Legal Adviser of the Department of State, testified to the same effect before the Subcommittee on the Panama Canal of the House Committee on Merchant Marine and Fisheries. See Dept. of State Bulletin, Vol. LXV, No. 1696, Dec. 27, 1971, pp. 738–741. As precedents for the authority to dispose of U.S. property by treaty, he cited, inter alia:

U.S.-Spain Treaty of Amity, Settlement and Limits of 1819 (Florida Treaty); U.S.-Great Britain (Webster-Ashburton) Treaty of 1842; U.S.-Great Britain Treaty in Regard to Limits Westward of the Rocky Mountains of 1846 (Oregon Treaty); U.S.-Germany-Great Britain Treaty in Respect of the Samoan Islands of 1899; U.S.-Cuba Isle of Pines Treaty of 1904; U.S.-Mexico Boundary Treaty of 1933 (Rio Grande), 1963 (Chamizal), and 1970 (Rio Grande and Colorado River); U.S.-Panama General Treaty of Friendship and Cooperation (1936), article II; U.S.-Nicaragua Treaty of 1970, relinquishing canal rights.

Observance

A principle entitled "Fulfillment in good faith of obligations under international law" is one of 10 major principles adopted by the 35 states that participated in the Conference on Security and Cooperation in Europe (CSCE). It is Principle X of the Declaration on Principles Guiding Relations between Participating States, incorporated in the Final Act of the Conference signed at Helsinki on August 1, 1975, and includes the following statements relative to treaty obligations:

The participating states will fulfill in good faith their obligations under international law, both those obligations arising from the generally recognized principles and rules of international law and those obligations arising from treaties or other agreements, in conformity with international law, to which they are parties.

The participating states confirm that in the event of a conflict between the obligations of the members of the United Nations under the Charter of the United Nations and their obligations under any treaty or other international agreement, their obligations under the Charter will prevail, in accordance with Article 103 of the Charter of the United Nations.

The participating states, paying due regard to the principles above and, in particular, to the first sentence of the tenth principle, "Fulfillment in good faith of obligations under international law," note that the present Declaration does not affect their rights and obligations, nor the corresponding treaties and other agreements and arrangements.

The Final Act of the CSCE is not itself a treaty or other international agreement; see post, Ch. 5, § 7, pp. 325-327. For reference to other provisions of the Final Act of the CSCE, see index entries, this Digest, under Conference on Security and Cooperation in Europe (CSCE) (1975).

Application

Succession of States in Respect of Treaties

Arthur W. Rovine, Assistant Legal Adviser for Treaty Affairs, in a letter dated April 23, 1975, responded to an inquiry from

Christopher J. Makins, First Secretary of the British Embassy in Washington, concerning the general practice of the United States on the subject of succession to treaties by newly independent nations. Mr. Rovine's letter states in part:

While the Department of State strongly prefers to receive from a newly independent nation a statement of its intention to be bound by a particular multilateral treaty before we consider that nation a party to such treaty, we are generally prepared to accept as valid evidence of succession general declarations such as those frequently made to the United Nations SecretaryGeneral. Thus we are prepared to list as parties to multilateral agreements states which have made such general declarations. This would not be applicable, of course, in cases necessitating the consent of all parties to the agreement, or cases in which such succession would be incompatible with the object and purpose of the agreement. In addition, we examine these declarations closely to determine whether they contain reservations or other statements, such as clauses permitting termination in a fashion not permitted by the agreement, that may themselves be incompatible with the object and purpose of the agreement.

As for bilateral treaties, the United States normally attempts to make detailed arrangements with newly independent states with respect to our treaty relationships. Pending the conclusion of such arrangements, we have accepted general declarations as sufficient for purposes of continuing a particular treaty relationship, but again provided that the declarations contain no reservations or conditions inconsistent with the object and purpose of the agreement in question.

Dept. of State File No. P75 0070-2294.

The International Law Commission, at its twenty-sixth session held May 6 July 26, 1974, adopted the final text of its draft articles on succession of states in respect of treaties (GAOR: 29th Sess., Supp. No. 10 (A/9610 Rev. 1), pp. 16-107). The General Assembly, by Resolution 3315 (XXIX) approved December 14, 1974, invited member states to submit their written comments not later than August 1, 1975. By Resolution 3496 (XXX) of December 15, 1975, it called for a conference of plenipotentiaries in 1977 to consider an international convention on the subject.

Set forth below are the text of the draft articles adopted by the Commission and the comments submitted by the United States on May 5, 1975: