Chapter 5 THE LAW OF TREATIES AND OTHER INTERNATIONAL AGREEMENTS Conclusion and Entry Into Force Algiers Accords On January 19, 1981, the United States reached agreement with Iran, through the Government of the Democratic and Popular Republic of Algeria, as intermediary, on the terms and conditions under which Iran would release the 52 United States nationals ("the hostages") seized at the American Embassy at Tehran on November 4, 1979, and the United States would unblock the frozen assets of the Iranian Government, its agencies, instrumentalities, and entities, subject to use of a major portion thereof for payment of Iranian indebtedness to banks and of arbitral awards against Iran, to be made by the Iran-United States Claims Tribunal that was established as part of the overall settlement. The United States also committed itself to terminate all litigation against Iran in United States courts. (See, Dames & Moore v. Regan, 454 U.S. 654 (1981); and, see, also, this Digest, Ch. 4, §1. p. 321, and Ch. 13, §2, post.) The "Algiers Accords" consisted of: (1) the Declaration of the Government of the Democratic and Popular Republic of Algeria, which set out the basic, general commitments of the United States and Iran; (2) the Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran, which, expanding upon a commitment for settlement of claims in the (general) Declaration, established an international arbitral tribunal (the Iran-United States Claims Tribunal) to decide claims arising out of debts, contracts, expropriations or other measures affecting property rights, with certain specified exclusions; and (3) a separate document, "Undertakings of the Governments of the United States of America and the Government of the Islamic Republic of Iran with Respect to the Declaration of the Government of the Democratic and Popular Republic of Algeria", which set out the total amount (and the disposition of) the Iranian assets to be transferred immediately to the Cen tral Bank (the Bank of England) for deposit in dollar, gold bullion, and securities accounts in the name of the Algerian Central Bank as Escrow Agent-an aggregate of $7.955 billion. Upon notification of transfer, as described in the Undertakings, Iran was to bring about immediately the safe departure of the 52 United States nationals ("the hostages") from Iran. In addition to the two Declarations and the Undertakings, initialed by Deputy Secretary of State Warren M. Christopher at Algiers on January 19, 1981, on behalf of the United States, and adhered to by President Carter on behalf of the United States and by Behzad Nabavi on behalf of the Government of the Islamic Republic of Iran, both on January 19, 1981, the Algiers Accords also included two implementing instruments, both dated January 20, 1981: (1) an Escrow Agreement among the United States Government, the Federal Reserve Bank of New York, acting as its Fiscal Agent, Bank Markazi (the Central Bank of Iran), "as an interested party," and Banque Centrale d'Algerie (the Central Bank of Algeria: Algerian Central Bank), acting as Escrow Agent; and (2) a Technical Arrangement between Banque Centrale d'Algerie, as Escrow Agent, and the Governor and Company of the Bank of England and the Federal Reserve Bank of New York, as Fiscal Agent of the United States. The texts of President Carter's statements of adherence to the two Declarations and the Undertakings follow: By the authority vested in me as President by the Constitution and laws of the United States, I hereby agree and adhere, on behalf of the United States of America, to the provisions of two Declarations that are being issued today by the Government of the Democratic and Popular Republic of Algeria relating to (1) the resolution of the current crisis between the United States and Iran arising out of the detention of the fifty-two United States nationals, and (2) the settlement of claims between the United States and Iran. The two Declarations shall constitute international agreements legally binding upon the United States and Iran upon the execution of an equivalent statement of agreement and adherence by the Islamic Republic of Iran and the delivery of both statements to the Government of the Democratic and Popular Republic of Algeria. By the authority vested in me as President by the Constitution and laws of the United States, I hereby agree and adhere, on behalf of the United States of America, to the provisions of the Undertakings of the Government of the United States of America and the Government of the Islamic Republic of Iran with respect to the Declaration of the Government of the Democratic and Popular Republic of Algeria. These Undertakings shall constitute an international agreement legally binding upon the United States and Iran upon the execution of an equivalent statement of agreement and adherence by the Islamic Republic of Iran and the delivery of both statements to the Government of the Democratic and Popular Republic of Algeria. The texts may also be found at Public Papers of the Presidents: Jimmy Carter, 1980-81, Bk. III (1982), pp. 3026-3027; American Foreign Policy: Current Documents, 1981 (1984), p. 746; and Dept. of State Bulletin, Vol. 81, No. 2047, Feb. 1981, p. 7. Ratification Procedures for Multilateral Treaties In a memorandum dated November 25, 1980, and prepared for the Tripartite Advisory Panel on International Labor Standards, a group of legal experts under the aegis of the President's Committee on the International Labor Organization, Stephen M. Schwebel, Deputy Legal Adviser of the Department of State, discussed ratification procedures for multilateral treaties with particular regard to qualifications that a United States instrument of ratification might possibly contain. The major portion of the memorandum follows: * Qualifications to U.S. Ratification of Multilateral Treaties Under the international and United States law of treaties, a state may not be held to any treaty obligation it did not accept. When a treaty is submitted to the Senate for advice and consent to ratification, the debate will often reveal particular changes or interpretations in the treaty preferred by the Senate. In that case, understandings, reservations, or declarations may be attached by the Senate to its resolution of ratification. The practice of the International Labor Organization with respect to reservations to ILO Conventions has differed significantly from the general practice. In 1920 the International Labor Office first formulated the principle that reservations to ratifications of ILO Conventions are not admissible. This position has been repeatedly reaffirmed since that time and has been generally accepted by the ILO membership. Understandings and declarations are acceptable. The ILO position on reservations is based upon several considerations, the most important being (1) the traditional treaty rule requiring the consent of all parties to any reservation; and (2) the adoption and application of ILO Conventions by the unique ILO tripartite grouping. The first consideration is no longer relevant since modern treaty practice, as codified in Article 20 of the Vienna Convention on the Law of Treaties, requires the consent of only one other party. The second consideration could be met by a procedure permitting the employer and worker representatives to present their views on reservations made by other parties upon their circulation by the depositary. Nevertheless the ILO position is unlikely to change after 60 years of practice, and there is little utility in a challenge to it by the United States. On the other hand, understandings and declarations may often achieve as much substantively as a reservation, particularly where a treaty provision permits a reasonably wide latitude in its application. Indeed, it is sometimes difficult in general practice to distinguish an understanding from a reservation. In view of the ILO's restrictive practice on reservations, and given the unusual nature of United States relations with the ILO, I believe the Organization would be as receptive as possible in its encouragement of U.S. ratification and thus is not likely to object to a range of carefully drawn understandings and declarations designed to conform U.S. law and any Conventions the United States might wish to ratify. A Declaration as to the Non-Self-Executing Character of a Convention or Particular Provisions of a Convention A Senate declaration stipulating that a convention or particular provisions of a convention had a non-self-executing character would have a certain legal effect in U.S. domestic law, but would not have any impact upon U.S. international obligations under the convention in question. "Non-self-executing" means that the treaty provision cannot be applied directly by our courts as if it were a statute or other rule of law. Rather, implementation or "execution" of some kind is required, usually in the form of implementing legislation. There are no precise rules for determining whether a provision is selfexecuting or not. It depends upon the intent of the parties and the nature of the provision. The judiciary will make the final determination. While a non-self-executing provision requires implementing legislation, that is not to say that new legislation is necessarily required. If prior legislation that gives effect to a treaty provision is already in force, then no new legislation is needed. But that does not change the character of the provision as non-self-executing. Should a U.S. court determine in a case before it that a treaty provision is not self-executing, the court will state that implementing legislation is required or, if relevant legislation already exists, the court will look to that legislation in deciding the case. The treaty provision may be of assistance in providing a basis for one interpretation or another of the statute, but the treaty provision would not be applied directly as a rule governing the court's decision. In a case in which a non-self-executing treaty provision is consistent with a U.S. statute, but the statute differs in its wording, the judge will be in a position to apply the statute alone without having to hear argument on any possible legal significance of the differences in the wording. Only if a treaty provision is self-executing does a difference in wording between that provision and a statute become legally significant. There is a question whether a non-self-executing declaration by the Senate would be binding on the courts. The doctrine of non-selfexecuting treaties is judicial in nature, and of course the judiciary are the final interpreters of our treaties. While some federal courts may not feel bound by such a Senate declaration attached to the |