The United States Delegation does not believe additional funds from the general resources budget should be committed to the Indochina Program in view of the limited resources and needs in other parts of the world. There is ample opportunity for countries wishing to expand UNICEF assistance to Indochina to do so by contributing to the Secretary-General's special appeal. The United States Delegation wants it explicitly noted in the records of this Committee that it has reservations with regard to this proposal.

Press Release USUN 52(75), corr. 1, May 27, 1975. Dept. of State Bulletin, Vol. LXXIII, No. 1881, July 14, 1975, p. 72.

United Nations Institute for Training and Research

Ambassador Daniel P. Moynihan, United States Representative to the United Nations, presented to the Secretary-General of the United Nations on September 25, 1975, a check for $290,000, representing an initial and partial contribution from the United States to the U.N. Institute for Training and Research (UNITAR) for 1975. In a press release that day, the United States urged other countries which had not yet contributed in proportion to their resources to join in providing funds.

Press Release USUN-102(75), Sept. 25, 1975; Dept. of State Bulletin, Vol. LXXIII, No. 1899, Nov. 17, 1975, p. 701.

Interparliamentary Union

Under Section 204 of the Foreign Relations Authorization Act, Fiscal Year 1976 (P.L. 94-141; 89 Stat. 762; 22 U.S.C. 276), approved November 29, 1975, appropriations are authorized for fiscal years beginning with 1976 for the annual U.S. contribution to the Interparliamentary Union in an amount equal to 13.61 percent of its budget, if approved by the American group.

Special Funds

On March 21, 1975, Ambassador John Scali, U.S. Representative to the United Nations, announced a U.S. pledge of $50,000 for the United Nations Educational and Training Program for Southern Africa for 1975, subject to congressional approval. The pledge was made with the stipulation that the contribution was to be specially earmarked for training for Namibians. In a letter that day to the Secretary-General of the United Nations, Ambassador Scali stated, in part:

The United States fully recognizes the United Nations' unique responsibility for Namibia and considers the program a

necessary and appropriate effort to aid some of the territory's people.

The United States makes its pledge on the condition that its contribution shall not exceed one-third of the total voluntary contributions to the United Nations Educational and Training Program for Southern Africa.

Press Release USUN-24(75), Mar. 21. 1975.

Ambassador Nathaniel Davis, Assistant Secretary of State for African Affairs, informed the Subcommittee on International Resources, Food, and Energy of the House Committee on International Relations, on June 10, 1975, that the United States did not propose to make a voluntary contribution to the United Nations Fund for Namibia in 1975. He pointed out that when the United States made a voluntary contribution of $50,000 in 1974 to the United Nations Fund for Namibia, it made a statement that further United States contributions to the Fund would be conditioned upon the cessation of allocations from the regular U.N. budget to the Fund. See the 1974 Digest, Ch. 2, § 4e, p. 43. Nevertheless, the General Assembly in December 1974 had authorized the appropriation of $200,000 from the United Nations' general budget, for the Fund for Namibia.

Dept. of State Bulletin, Vol. LXXII, No. 1880, July 7, 1975, pp. 36-39.

An appropriation of $10,000,000 for a U.S. contribution to the United Nations University Endowment Fund was authorized in Section 205 of the Foreign Relations Authorization Act, Fiscal Year 1976 (P.L. 94-141; 89 Stat. 762), approved November 29, 1975. Such contribution is to be made on terms the President finds will promote the purposes stated in the University Charter, but not to exceed 25 percent of the total contributed by other members.

F. POWERS AND RULES OF ORGANS

United Nations Security Council

Competence

Security Council Resolution 381 (1975), adopted on December 1, 1975, renewing the mandate of the United Nations Disengagement Force for six months, contained a provision calling for a Security Council debate on the situation in the Middle East. Prior to the vote, Ambassador Daniel P. Moynihan, United States Representative to the United Nations, stated to the Council:

.. the United States wishes to make clear that we are not

agreeing to this resolution . . . out of any desire for such a debate in this setting-much less out of any intention, howsoever remote, of seeing a transfer of the negotiations between the two parties to the UNDOF arrangements to the Security Council.

We .. .. are agreeing, solely out of deference to the right of the Security Council to take up any matter it desires to take up. We consider that this resolution is taken without prejudice whatsoever to the Geneva formula or to the negotiations by the parties through intermediaries.

Press Releases USUN-165(75) and 166(75), Dept. of State Bulletin, Vol. LXXIV, No. 1906, Jan. 5, 1976, pp. 28-29. See ante, this Chapter, § 4C, p. 73.

G. LEGAL EFFECTS OF ACTS

United Nations Resolutions and Declarations

Stephen M. Schwebel, Deputy Legal Adviser of the Department of State, presented the United States position as to the legal effect of resolutions and declarations of the United Nations General Assembly in a letter dated April 25, 1975, to Marcus G. Raskin, CoDirector of the Institute for Policy Studies. Mr. Schwebel's letter reads in pertinent part:

There is no official paper which generally states a policy position by the United States as to the legal effect of United Nations General Assembly resolutions and declarations. As a broad statement of U.S. policy in this regard, I think it is fair to state that General Assembly resolutions are regarded as recommendations to Member States of the United Nations.

To the extent, which is exceptional, that such resolutions are meant to be declaratory of international law, are adopted with the support of all members, and are observed by the practice of states, such resolutions are evidence of customary international law on a particular subject matter. In addition, it should be noted that General Assembly resolutions passed pursuant to Article 17 of the Charter regarding assessed contributions to the United Nations budget, as well as certain resolutions governing the Organization's internal acts (e.g., election of members of the Security Council, directions to the Secretariat), are binding.

Dept. of State File No. P75 0075-445.

The case of Diggs et al. v. Dent, Civil Action No. 74-1292, brought on August 28, 1974, in the United States District Court for the District of Columbia, raised a question of the domestic legal effect of the United States international obligation to refrain from dealing with the Government of South Africa in such a fashion as to indicate approval of that country's occupation of Namibia.

Plaintiffs had asked the Court to declare that the dealings of Frederick B. Dent, then Secretary of Commerce, with the Government of South Africa in relation to the importation of sealskins from Namibia violated the United Nations Charter, United Nations Security Council Resolutions 276 and 301, among others, and the 1971 Advisory Opinion of the International Court of Justice on Legal Consequences for States of the Continued Presence of South Africa in Namibia. Plaintiffs also sought an injunction against further dealings of this nature. The matter came before the Court on motions of defendant Dent and intervenor Fouke Company, Inc., to dismiss, pursuant to the Federal Rules of Civil Procedure, for lack of jurisdiction and failure to state a claim on which relief could be granted, or in the alternative for summary judgment.

In a memorandum opinion, dated May 13, 1975, Judge Thomas A. Flannery, United States District Judge, ruled that the plaintiffs had standing before the Court under the United Nations resolutions at issue as they were "arguably within the zone of interests sought to be protected by those Resolutions." He relied principally on the precedent of Diggs v. Schultz, 470 F.2d 461 (1972), cert. denied, 411 U.S. 931 (1973). Nevertheless Judge Flannery found that the Court was without jurisdiction to hear the plaintiffs' claim in view of the limited nature of those United Nations resolutions. Further, he found the issues to be within the foreign policy authority of the President and not justiciable, and he granted the defendant and intervenor's motions to dismiss.

Plaintiffs were Diggs and Houser, who had been denied entry to the territory of Namibia; the South West Africa People's Organization (SWAPO), an association of inhabitants of Namibia and persons from Namibia, which brought suit on its own behalf and on behalf of its members, many of whom were prevented from returning to Namibia; and Theo-Ben Gurirab, a Namibian refugee who would be subject to arrest by the South African Government if he returned to Namibia.

The Secretary of Commerce was responsible for implementing the Marine Mammal Protection Act of 1972, 16 U.S.C. 1361 et seq. His subordinates, under his direction, had dealt with the Government of South Africa regarding applications by intervenor Fouke Company, Inc., for waivers of the Act to import skins from South Africa. Under 16 U.S.C. 1371, waivers of the Act's moratorium on import of marine mammals and marine mammal products may be granted if certain requirements, primarily concerning the manner of harvesting of mammals in the country of origin, are met. The waivers requested by Fouke had been denied, and another request for waiver was pending when the suit was instituted.

In the suit, plaintiffs sought to have declared illegal and to enjoin the contacts which representatives of the Commerce Department would have to make with officials in South Africa in deciding upon the waiver, as well as visits to places from which the sealskins would originate, including Namibia. Such contacts, they argued, were inconsistent with the General Assembly resolution of October 27, 1966, for which the United States had voted, officially terminating the South African mandate; with the affirmative vote of the United States in Security Council Resolution 276 (1970), calling upon states to refrain from dealings with the Government of South Africa inconsistent with the declaration of illegality of the continued presence of South Africa in Namibia; with the 1971 Advisory Opinion of the International Court of Justice and the United States acceptance of that opinion; and with the affirmative vote of the United States on Security Council Resolution 301 (1971), calling on states to abstain from sending diplomatic or special missions to South Africa that include Namibia in their jurisdiction and to abstain from dealings with South Africa on behalf of or concerning Namibia which might entrench its authority over the territory. By operation of Article 25 of the United Nations Charter (TS 993; 59 Stat. 1031; entered into force for the United States October 24, 1945), it was stated, the United States must carry out those Security Council decisions.

Judge Flannery's opinion, after ruling that the plaintiffs had standing to bring the action, went on to state:

In spite of the above conclusion on the issue of standing the Court is without jurisdiction to hear plaintiffs' claim. Plaintiffs contend that the United Nations resolutions are positive domestic law and as such are judicially enforceable. As support for this argument they point to Articles III and IV of the Constitution which provide that the judicial power extends to cases arising under treaties and that all treaties shall be the supreme law of the land. The Court is, however, of the opinion that the limited nature of the United Nations resolutions deprives this Court of jurisdiction over the action.

Plaintiffs must assert a claim arising "under the Constitution, laws, or treaties of the United States." See 28 U.S.C. § 1331 (1970). The Charter of the United Nations is a treaty within the meaning of Article VI, clause 2 of the Constitution of the United States, and thus is the "law of the land." Sei Fujii v. California, 38 Cal. 718, 242 F.2d 617, 619-20 (1952). As such it imposes definite international obligations on the United States. Nevertheless, treaties do not generally confer upon citizens rights which they may enforce in the courts. It is only when a treaty is "self-executing" that individuals derive enforceable rights from the treaty, without further legislative or executive action. See Restatement (Second) of Foreign Relations Law § 141 (1965); 14