resolution of ratification, great weight would be accorded such a declaration and the courts would likely find that the provisions in question were non-self-executing.

It is important to note that a non-self-executing declaration by the Senate, even if formally communicated to the depositary in the instrument of ratification, would have no international legal effect. Its sole effect would be domestic. The United States would still be bound to comply with its treaty obligations under international law. Whether those obligations are self-executing or not is of no legal interest or concern internationally. The United States could not rely on the non-self-executing nature of its treaty obligations as a reason for failure to comply with such obligations.

Dept. of State File No. P81 0004-1092.

Art. 20 of the Vienna Convention on the Law of Treaties, done at Vienna, May 23, 1969, provides:

Article 20

Acceptance of and objection to reservations

1. A reservation expressly authorized by a treaty does not require any subsequent acceptance by the other contracting States unless the treaty so provides.

2. When it appears from the limited number of the negotiating States and the object and purpose of a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties.

3. When a treaty is a constituent instrument of an international organization and unless it otherwise provides, a reservation requires the acceptance of the competent organ of that organization.

4. In cases not falling under the preceding paragraphs and unless the treaty otherwise provides:

(a) acceptance by another contracting State of a reservation constitutes the reserving State a party to the treaty in relation to that other State if or when the treaty is in force for those States;

(b) an objection by another contracting State to a reservation does not preclude the entry into force of the treaty as between the objecting and reserving States unless a contrary intention is definitely expressed by the objecting State;

(c)

an act expressing a State's consent to be bound by the treaty and containing a reservation is effective as soon as at least one other contracting State has accepted the reservation.

5. For the purposes of paragraphs 2 and 4 and unless the treaty otherwise provides, a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later.

United Nations Conference on the Law of Treaties, Vienna, 26 March-24 May 1968 and 9 April-22 May 1969, Off. Rec., Documents of the Conference, A/CONF. 39/11 Add. 2 (1971), pp. 291-292; S. Ex. L. 92d Cong., 1st sess. (1971); Int'l Leg. Mat., Vol. 8 (1969), pp. 679, 687.

In regard to non-self-executing treaties, see, further, this Chapter, post.

Reservations, Understandings, and Declarations

Moon Treaty

A letter dated May 27, 1980, from Arthur W. Rovine, Assistant Legal Adviser for Treaty Affairs, the Department of State, to Ronald F. Stowe, Chairman, Committee on Aerospace Law, Section of International Law, the American Bar Association, replied to an inquiry about the legal effect of reservations, understandings, and declarations to treaties.

The major portion of Mr. Rovine's letter follows:

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. If the President agrees with the Senate, he will sign the instrument of ratification with the full text of the Senate's qualifications.

Under international law, a multilateral treaty is, in effect, a set of bilateral treaty relationships. The following rules will govern the establishment of these relationships:

The U.S. instrument of ratification, including the qualifications, will be sent to the depository (in this case the U.N. SecretaryGeneral) who will inform all parties to the Treaty, and circulate to them the full texts of the U.S. qualifications. International treaty law gives each party one year in which to respond to the qualifications, and silence for a year is taken as acceptance. (See Article 20 of the Vienna Convention on the Law of Treaties.)

Should a party object within one year to the U.S. reservations or understandings, or any of them, it might do so only for the record, in which case that party's Moon Treaty relationship with the United States would be established, with the U.S. reservations and understandings fully effective. A party might also object with the stated intention of preventing its treaty relationship with the United States from entering into force. There are no other alternatives. In the latter case, the United States and the objecting state will not have a treaty relationship with respect to the Moon Treaty. On the other hand, the United States and all state parties either accepting, or objecting only for the record, will have a treaty relationship, and the U.S. qualifications would govern. In short, the United States cannot be compelled to accept a treaty obligation to which it has not agreed to be bound. The United States would, of course, have an identical right to respond to any qualifications attached by other state parties to their ratifications of the Treaty.

A "reservation" by the Senate makes a substantive change in a treaty obligation, and most commonly takes the form of a refusal to be bound by a particular article or provision. An "understanding" is an interpretation of an article or provision. A "declaration" is a statement of policy. If any of these qualifications relate to the international application of the treaty, it is binding in interna

tional law as between the United States and the accepting or non-objecting states, and is binding as well in U.S. law. If it relates [not] to the international application of the treaty but only to U.S. domestic law or procedure, then it is binding in U.S. law and is not relevant for international law purposes.

So, for example, any U.S. understandings on the meaning of "common heritage," "equitable sharing," "in place," the existence or not of a moratorium, or any other subject related to the international application of the Moon Treaty, will be legally binding as between the United States and parties who accept such understandings or do not object with a stated intention of preventing the treaty relationship with the United States from entering into force.

If other states formulate opposing or different reservations, understandings, or declarations, the United States will have full opportunity to decide whether or not it wishes to accept them, or whether to enter into the treaty relationship with the particular countries involved. There are no circumstances under which the United States could be considered, as a matter of international law or domestic law, as having undertaken legal obligations inconsistent with Senate reservations or understandings. A U.S. domestic court could not construe our treaty obligations in a manner inconsistent with such qualifications. Nor could an international tribunal.

Dept. of State File No. P84 0060-0356; The Moon Treaty: Hearings before the Subcomm. on Science, Technology, and Space of the Sen. Comm. on Commerce, Science, and Transportation, 96th Cong., 2d sess. (1980), pp. 81-82. See, further, this Digest, Ch. 8, §6.

Obligations Prior to Ratification

SALT II Treaty

In the light of the Soviet Union's invasion of Afghanistan in December 1979, President Carter, after consulting with the Senate leadership, requested Senate Majority Leader Robert Byrd on January 3, 1980, to delay Senate floor consideration of the SALT II Treaty.

The following day the Department of State issued, through Spokesman Hodding Carter III, a statement in regard to United States and Soviet obligations under international law prior to ratification and entry into force of the SALT II Treaty. The statement read:

The U.S. and the Soviet Union share the view that under international law a state should refrain from taking action which would defeat the object and the purpose of a treaty it has signed subject to ratification. We therefore expect that the United States and the Soviet Union will refrain from acts which would defeat the object and the purpose of the SALT II Treaty before it is ratified and enters into force. Such acts could include, for example, testing of missiles with more warheads than would be permitted under the

Treaty or the testing of new types of missiles which would not be permitted under the Treaty.

The Administration continues to believe that the limits on Soviet strategic forces contained in the SALT II Treaty are in our interests and that the Treaty should be ratified and should enter into force. This is still our objective; however, in light of events in Afghanistan, we believe that other issues should not take higher priority for the moment.

Subsequent attention given to the question in the Congress and in the press suggested that it would be desirable to clarify the nature of a treaty signatory's obligation under international law to observe treaty provisions between the date of signature and the ultimate date of ratification. In a memorandum of law prepared for the Secretary of State (Vance) under date of February 21, 1980, the Legal Adviser of the Department, Roberts B. Owen, summarized the relevant international legal requirements, examined their applicability to the SALT II Treaty, and also discussed their relationship to section 33 of the Arms Control and Disarmament Act. The major portion of the memorandum follows:

The following discussion shows that, under customary international law, a signatory to a treaty is obliged, prior to the treaty's entry into force, to refrain from acts which would defeat the object and purpose of the treaty. This obligation continues in the case of a bilateral treaty only for so long as both signatories intend to bring the treaty into force.

The application of this general rule with respect to the SALT II Treaty does not require observance of all the Treaty's provisions prior to ratification. However, certain actions, such as the flighttesting of intercontinental ballistic missiles (ICBMs) with a number of reentry vehicles in excess of the Treaty's limits, could irreversibly negate the intended purpose of the Treaty. Such actions could give rise to a military capability that the Treaty is intended to deny to both sides and therefore violate the applicable general rule of international law.

Apart from our basic national interest in encouraging adherence to the rule of law, observance of this general rule with respect to SALT II is in the national security interests of the United States. In the short term, there is no practical step whereby the United States could gain a military advantage by violating the international law rule. For the longer term, observance of the rule preserves our options with respect to the future of arms control in our internatíonal relations.

Finally, this memorandum discusses the compatibility of the observance of this rule of international law with the Constitution and statutes of the United States. In particular, observance of the rule is inherent in the treatymaking process and preserves the opportunity for the Senate to exercise its responsibility for deciding whether or not the Treaty may enter into force.

1. Evaluation and Meaning of the General Rule

It has long been established that international law imposes constraints with respect to action by the signatories which might prejudice or render impossible the entry into force of a treaty which is subject to ratification. In its comprehensive study of the law of treaties in 1935, the Harvard Law School concluded that:

. . .under some circumstances, good faith may require that pending the coming into force of the treaty the State shall, for a reasonable time after signature, refrain from taking action which would render performance by any party of the obligations stipulated impossible or more difficult.1

Lord McNair, a prominent British authority on treaty law, reached a similar conclusion in 1938.2

In 1966, the International Law Commission, a body of prominent international jurists elected by the U.N. General Assembly to restate and develop international law, initiated an effort to codify existing customary international law on the conclusion, application and termination of treaties.4 The Commission's recommendations were adopted (in modified form) by the United Nations Conference on the Law of Treaties in 1969, with the support of both the United States and the Soviet Union.5 That Conference developed the Vienna Convention on the Law of Treaties, which has just entered into force. Although neither the United States nor the Soviet Union as of yet has ratified it, as Secretary of State Rogers stated at the time the Vienna Convention was transmitted to the Senate in 1971, "the Convention is already generally recognized as the authoritative guide to current treaty law and practice." Since then, the Convention has been recognized consistently by the International Court of Justice and other international tribunals as a principal source of international law relating to treaties.9

During the sessions of the International Law Commission on the codification of treaty law, proposals were made by various prominent international jurists to include a statement of the existing rule on obligations prior to ratification, such as a formulation by [Sir Hersch] Lauterpacht to the effect that signatories were obliged "to refrain, prior to ratification, from any act intended substantially to impair the value of the undertaking as signed", 10 and by [Sir Gerald G.] Fitzmaurice that signatories were obliged "not to take any action calculated to impair or prejudice the objects of the treaty..." Ultimately, the Commission recommended a rule stating that signatories were obliged "to refrain from acts tending to frustrate the object of a proposed treaty. . ." and identified it as a generally accepted principle of customary international law.12

At the U.N. Conference on the Law of Treaties which considered the Commission's work, both the United States and the Soviet Union supported the proposition that customary international law imposed such a duty on treaty signatories and voted in favor of its inclusion in the Convention adopted by the Conference.13 Various decisions of international tribunals and arbitral panels were cited in support of this rule. 14 After revision by the Conference's Drafting Committee, the following rule was included (without a dissenting vote) in Article 18 in the final version of the Convention:15