Trade and Commerce

Agreement on trade matters, with annexes. Exchange of letters at Arlington and Washington, October 24, 1979; entered into force, October 24, 1979.

Implementing agreement relating to trade in cotton, wool and man-made fiber textiles and textile products. Exchange of letters at Arlington and Washington, November 5 and 21, 1979; entered into force, November 21, 1979.

Implementing agreement relating to trade in cotton, wool and man-made fiber textiles and textile products. Exchange of letters at Arlington and Washington, December 13 and 17, 1979; entered into force, December 17, 1979.

Implementing agreement relating to trade in cotton, wool and man-made fiber textiles and textile products. Exchange of letters at Arlington and Washington, December 13 and 17, 1979; entered into force, December 17, 1979.

Implementing agreement concerning export limitations relating to trade in cotton, wool and man-made fiber textiles and textile products. Exchange of letters at Arlington and Washington, July 25 and August 25, 1980; entered into force, August 25, 1980. Agreement relating to exports of color television receivers, with annexes. Signed at Taipei, June 28, 1980; entered into force, June 28, 1980.

Weather Observations

Agreement relating to provision to AIT of ionospheric weather observations by CCNAA. Signed at Arlington and Washington, November 26, 1980; entered into force, November 26, 1980.

Fed. Reg., Vol. 46, No. 32, Feb. 18, 1981, pp. 12918-12919.

The Agreement on Privileges, Exemptions and Immunities, signed at Washington, Oct. 2, 1980, may be found at this Digest, Ch. 4, §3, ante, pp. 386-390. Texts of the other agreements are available from the American Institute in Taiwan.

Similar lists are published annually in the Federal Register by the Office of the Federal Register.

Sec. 6 of the Taiwan Relations Act, P.L. 96-8, as codified to 22 U.S.C. 3305, provides:

§ 3305. The American Institute in Taiwan

(a) Conduct of programs, transactions, or other relations with respect to Taiwan

Programs, transactions, and other relations conducted or carried out by the President or any agency of the United States Government with respect to Taiwan shall, in the manner and to the extent directed by the President, be conducted and carried out by or through—

(1) The American Institute in Taiwan, a nonprofit corporation incorporated under the laws of the District of Columbia, or

(2) such comparable successor nongovernmental entity as the President may designate, (hereafter in this chapter referred to as the "Institute").

(b) Agreements or transactions relative to Taiwan entered into, performed, and enforced

Whenever the President or any agency of the United States Government is authorized or required by or pursuant to the laws of the United States to enter into, perform, enforce, or have in force an agreement or transaction relative to Taiwan,

such agreement or transaction shall be entered into, performed, and enforced, in the manner and to the extent directed by the President, by or through the Institute.

(c) Preemption of laws, rules, regulations, or ordinances of District of Columbia, States, or political subdivisions of States

To the extent that any law, rule, regulation, or ordinance of the District of Columbia, or of any State or political subdivision thereof in which the Institute is incorporated or doing business, impedes or otherwise interferes with the performance of the functions of the Institute pursuant to this chapter, such law, rule, regulation, or ordinance shall be deemed to be preempted by this chapter.

93 Stat. 14, 17, 22 U.S.C. 3305.

Sec. 12 of the Taiwan Relations Act, P.L. 96-8, as codified to 22 U.S.C. 3309, provides:

§ 3311. Reporting requirements

(a) Texts of agreements to be transmitted to Congress; secret agreements to be transmitted to Senate Foreign Relations Committee and House Foreign Affairs Committee

The Secretary of State shall transmit to the Congress the text of any agreement to which the Institute is a party. However, any such agreement the immediate public disclosure of which would, in the opinion of the President, be prejudicial to the national security of the United States shall not be so transmitted to the Congress but shall be transmitted to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives under an appropriate injunction of secrecy to be removed only upon due notice from the President.

(b) Agreements

For purposes of subsection (a) of this section, the term "agreement" includes

(1) any agreement entered into between the Institute and the governing authorities on Taiwan or the instrumentality established by Taiwan; and

(2) any agreement entered into between the Institute and an agency of the United States Government.

(c) Congressional notification, review, and approval requirements and procedures Agreements and transactions made or to be made by or through the Institute shall be subject to the same congressional notification, review, and approval requirements and procedures as if such agreements and transactions were made by or through the agency of the United States Government on behalf of which the Institute is acting.

93 Stat. 14, 20.

§ 2 Observance, Application, and Interpretation Provisional Application of Treaties

Following testimony before the Senate Committee on Foreign Relations on June 30, 1980, in support of maritime boundary agreements with Cuba, Mexico, and Venezuela, Mark B. Feldman, Deputy Legal Adviser of the Department of State, submitted written replies to four questions presented in writing by Senator Jacob K. Javits, two of which concerned provisional application of treaties. The two questions and Mr. Feldman's replies were as follows:

Question 2. What are the precedents for "provisional application" of treaties and what criteria do you use in deciding when that approach is appropriate? Is it necessary to have an explicit provision in a treaty regarding its provisional application or can the parties simply agree outside of the treaty to do so?

Answer: A provisional maritime boundary might be established by an executive agreement separate from a treaty-as is the case in the current situation with Mexico. A provisional maritime boundary might be established by a provision on "provisional application" in a treaty-such a provision itself constitutes a binding international agreement and can only be included in a treaty signed by the United States if the obligations undertaken in accordance with "provisional application" are obligations within the President's competence under U.S. law. It is also possible for the President to determine, as a matter of policy and without reaching agreement with other Parties, that the United States will "provisionally apply" a treaty signed by the United States so long as the obligations undertaken are all within the competence of the President under U.S. law.

The primary factor for determining the appropriateness of provisional application relates to the immediate need to settle quickly matters in the interest of the United States which are within the President's domestic law competence.

Some precedents for provisional application of treaties other than maritime boundary treaties include:

-International Sugar Agreement of 1958 (TIAS 4389; 10 UST 2189);

-International Wheat Agreement of 1962 (TIAS 5115; 13 UST 1571);

-International Coffee Agreement of 1962 (TIAS 5505; 14 UST 1911).

Question 3. What is the domestic legal status of a treaty applied provisionally? How is provisional application related to the obligation of treaty partners not to take any action prior to final ratification to defeat the "object and purpose" of the agreement?

Answer: A treaty applied provisionally has the same legal status as any agreement of the United States concluded by the President on his own authority. The American Law Institute, in a draft commentary on provisional application of treaties for the United States, stated:

If consent of the Senate or Congress is required for the conclusion of an agreement but has not yet been obtained, agreement by the United States for provisional effect must normally rest on the President's authority.

(Tentative Draft No. 1, Restatement of the Law, Foreign Relations Law of the United States (Revised) (1980), p. 117.)

A provisional application of a treaty, even though it might commit the nation to a particular course, does so temporarily and does not represent the final commitment of the nation. As such, it is closely tied to the negotiation process. While the President may not, through provisional application of treaties, change existing

law, treaties applied provisionally within the President's authority have full effect under domestic law pending a decision with respect to ratification. The provisional application is terminated if the United States or its treaty partner informs the other of its intention not to become a party to the agreement. The treaty enters into force definitively if the Senate approves and the President formally ratifies the treaty.

If the United States enters into a commitment with its treaty partner to apply a treaty provisionally pending ratification, the legal effect is the same as an executive agreement to apply the treaty provisionally. If there is no commitment to another state, but simply a unilateral policy decision by the President to apply the treaty provisionally, the President's power must be derived entirely from his domestic law authority. A unilateral provisional application would present a question of domestic constitutional law separate from the President's treaty or agreement power.

There is no direct relationship between provisional application and the obligation of treaty partners not to take actions prior to ratification that would defeat the object and purpose of the treaty. Provisional application means that treaty terms are applied temporarily pending final ratification. The obligation not to defeat the object and purpose of the treaty prior to ratification could, in theory, necessitate pre-ratification application of provisions, if any, where non-application from the date of signature would defeat the object and purpose of the treaty. Such provisions are rare. In the majority of cases the obligation not to defeat the object and purposes of the treaty means a duty to refrain from taking steps that would render impossible future application of the treaty when ratified.

Both provisional application of treaties and the obligation not to defeat the object and purpose of treaties prior to ratification are recognized in customary international law, in the Vienna Convention on the Law of Treaties (Articles 18 and 25), and in U.S. law (Tentative Draft No. 1, Restatement of the Law, Foreign Relations Law of the United States (Revised) (1980), pp. 110, 116).

Dept. of State File No. P80 0110-1460.

On Aug. 5, 1980, the Senate Committee on Foreign Relations reported the three maritime boundary agreements favorably without reservation and recommended Senate advice and consent to their ratification (see, this Digest, Ch. 7, § 3). The Committee registered "concern," however, at the administration's responses to Senator Javits' questions about provisional application of treaties, ante, even though the Committee did not "dispute the practical necessity of reaching limited practical accommodations between treaty signatories prior to Senate action." S. Ex. Rept. No. 96-49, 96th Cong., 2d sess. (1980), p. 4.

The Maritime Boundary Agreement between the United States and the Republic of Cuba, done at Washington, Dec. 16, 1977, may be found at S. Ex. H, 96th Cong., 1st sess. (1979); Int'l Leg. Mat., Vol. 17 (1978), p. 110. Subsequent agreements extending the provisional application of the Maritime Boundary Agreement of Dec. 16, 1977, pending its entry into force, each for a period of 2 years, commencing from Jan. 1, 1980, were affected by exchanges of notes at Washington, as follows: (1) Dec. 27 and 28, 1979; TIAS 9732; 32 UST 840; entered into force Dec. 28, 1979, and terminated according to their terms, Dec. 31, 1981; (2) Dec. 16 and 28, 1981, TIAS 10327; entered into force, Dec. 28, 1981, and terminated according to their terms, Dec. 31, 1983; (3) Dec. 27 and

30, 1983; TIAS ; entered into force, Dec. 30, 1983, eff. Jan. 1, 1984, and terminated according to their terms, Jan. 1, 1986; and (4) Nov. 20 and Dec. 3, 1985, entered into force, Dec. 3, 1985, eff. Jan. 1, 1986.

The Treaty on Maritime Boundaries between the United States of America and the United Mexican States, done at Mexico, May 4, 1978, may be found at S. Ex. F, 96th Cong., 1st sess. (1979); Int'l Leg. Mat., Vol. 17 (1978), p. 1073.

The Maritime Boundary Agreement between the United States and Venezuela, signed at Caracas, Mar. 28, 1978, is at TIAS 9890; 32 UST 3100; entered into force, Nov. 24, 1980.

See, also, this Digest, Ch. 7, §3.

See, further, the 1978 Digest, pp. 945-949.

Interpretation

Non-Self-Executing Treaties

In re Alien Children Education Litigation, 501 F. Supp. 544 (S.D. Texas 1980), involved a challenge to the constitutionality of Texas Educ. Code, tit.2, §21.031 (Vernon 1980), that prohibited use of a state fund to educate persons who were not citizens of the United States or "legally admitted aliens". On July 21, 1980, District Judge Woodrow B. Seals declared the statute unconstitutional, holding that the Constitution does not permit states to deny access to education to a separate ("discrete") group of children within its borders, when the state has undertaken to provide public education; and he enjoined the Texas Commissioner of Education permanently from implementing the challenged statutory provision.

The Court pointed out in its conclusion that its ruling was not "based on the primacy of treaties, federal legislation, or the power to conduct foreign relations" nor was the immigration status of the plaintiffs determinant, but, rather, that "education . . . [was] the focal point" of the case. The Court's statement was directed toward assertions, among others, by the plaintiffs that the Texas statute conflicted with United States treaties which, they alleged, had the effect of domestic law, and that the statute impermissibly interfered with foreign policy.

Under the plaintiffs' treaty-based argument, they urged that the Texas statute contravened Article 47 of the Charter of the Organization of American States, as amended. This, they contended, was a self-executing provision that invalidated section 21.031 under the Supremacy Clause (Article VI, clause 2) of the Constitution.

In rejecting the plaintiffs' contention, Judge Seals applied two principles of interpretation to determine if the treaty provision were self-executing: first, whether the treaty language itself manifests the parties' intent to confer rights or obligations upon their citizenry; and, second, whether, when the treaty instrument is unclear as to intent, circumstances surrounding its execution indicate such an intent. Although finding an implied intent in Article 47 to create