C. MEMBERSHIP AND REPRESENTATION

Membership

International Labor Organization

On February 13, 1980, President Carter announced that the United States would rejoin the International Labor Organization in a statement that read, in part:

Since [U.S. withdrawal], a majority of ILO members-governments, workers, and employers-have successfully joined together to return the ILO to its original purposes. Through their efforts, steps have been taken to strengthen the independence of employer and worker delegates, undertake investigations of human rights violations in a number of countries, including the Soviet Union, reinforce the principle of due process, and generally reduce the level of politicization in the ILO.

I have decided, therefore, that the United States should now rejoin the ILO and work with other members to ensure that the true potential of this organization is realized. This decision has the support of American trade union and employer organizationsthe AFL-CIO and the U.S. Council of the International Chamber of Commerce.

Weekly Comp. of Pres. Docs., Vol. 16, No. 7, Feb. 18, 1980, pp. 306-307; Dept. of State Bulletin, Vol. 80, No. 2037, April 1980, p. 65.

In a letter signed by Secretary of State Cyrus R. Vance on Feb. 15, 1980, the United States formally accepted the obligations of the Constitution of the International Labor Organization, in accordance with pars. 3 and 6 of Art. 1 thereof, and resumed its membership in the Organization, effective Feb. 18, 1980, the date upon which the Secretary's letter was delivered personally to the Director General of the International Labor Office, Francis Blanchard, by Ambassador Gerald B. Helman, U.S. Permanent Representative to the European Office of the United Nations in Geneva. Dept. of State File Nos. P83 0144-2120 and 0144-2121.

United States membership in the Organization had been terminated in Nov. 1977 because of U.S. concern over increasing misuse of the Organization, including: erosion of the independence of employer and worker delegates attending ILO conferences; the relative immunity of certain countries from criticism for violating workers' human rights; growing disregard for the principles of due process within the Organization; and introduction of extraneous political issues into ILO debates.

In response to a Congressional inquiry, the Office of the Legal Adviser of the Department of State prepared a memorandum on the President's authority to effect U.S. readmission to the International Labor Organization without fresh Congressional action. The memorandum, dated April 30, 1980, concluded that his authority carried forward under a 1934 Congressional joint resolution, authorizing the President to accept membership in the Organization, under a 1948 Congressional joint resolution authorizing him to accept the Organization's new Constitution, and also under annual authorizations of appropriations to pay the costs of United States membership and participation in the Organization. Excerpts follow:

U.S. membership in an international organization is contingent upon either advice and consent of the Senate to the multilateral treaty establishing the organization or Congressional authorization in a specific statute to accept membership.

The first step toward the original U.S. membership in the ILO was the introduction of a joint resolution in the Senate (S.J. Res. 131) on June 6, 1934, and in the House of Representatives (H.J. Res. 368) on June 16, 1934, which authorized the President to accept U.S. membership. This resolution . . . passed the Senate on June 9, 1934, and the House on June 19, 1934. A copy of the resolution was transmitted by the State Department via the U.S. Consul in Geneva to the International Labor Conference then in session. Following adoption of a resolution by the Conference inviting the U.S. to become a member, President Roosevelt accepted ILO membership on August 20, 1934, and issued a formal proclamation concerning U.S. acceptance on September 10, 1934.

The Congressional joint resolution remains in the U.S. Code as section 271 of Title 22:

"The President is authorized to accept membership for the Government of the United States of America in the International Labor Organization, which, through its general conference of representatives of its members and through its International Labor Office, collects information concerning labor throughout the world and prepares international conventions for the consideration of member governments with a view to improving conditions of labor." (June 19, 1934, c.676, Sec 1, 48 Stat. 1182).

This resolution, and the argument that it provides continuing authority for the President to accept membership for the U.S. in the ILO, constitutes the primary legal justification for U.S. readmission without Congressional action. Additional support for this approach is supplied by the joint resolution of Congress in 1948 which authorized the President to accept the new ILO Constitution and which authorized annual appropriations to pay necessary expenses of U.S. membership and participation. S.J. Res. 117, June 30, 1948, c. 756, 62 Stat. 1151. . The standing authorization of appropriations remains codified in 22 U.S.C. Sec. 272a... Nothing in the language or legislative history of either statutory provision weakens the argument that Congress granted continuing authority in 1934 and 1948.

The original ILO Constitution comprised Part XIII of the Treaty of Versailles of June 28, 1919 (Articles 387-427), and the only general membership provision appeared in section 2 of Article 1:

"The original Members of the League of Nations shall be the original Members of this Organization, and hereafter membership of the League of Nations shall carry with it membership of the said Organization." 2 Bevans 242.

In authorizing U.S. membership in the ILO, the primary concern of Congress was to ensure that the U.S. became in no way

entangled with the League of Nations. To that end, section 2 of the 1934 resolution declared:

"That in accepting such membership the President shall assume on behalf of the United States no obligation under the Covenant of the League of Nations."

This declaration was codified in 22 U.S.C. Sec. 272 but has been removed from the U.S. Code as obsolete. The absence of any other Congressional restrictions is significant.

Although the diplomatic history recorded in Foreign Relations of the United States (Vol. 1, 1934) discloses that the Department of State apparently did not recommend acceptance of ILO membership until certain that Congress would appropriate funds to meet the U.S. financial obligations in the ILO, the 1948 joint resolution now provides standing authorization of appropriations for ILO membership. Nevertheless, in view of the substantial appropriations required to fund U.S. participation in the ILO, the Office of the Legal Adviser strongly recommended that extensive Congressional consultations be conducted to ensure Congressional support for U.S. readmission to the ILO and for the necessary appropriations to finance ILO membership. These consultations were carried out and are described in detail [in an attachment to the memorandum].

Although the 1934 authorization dealt with an Organization which has since developed, the authorization to join the ILO remained in the U.S. Code after U.S. withdrawal from the Organization, as did the 1948 authorization regarding annual appropriations and acceptance of the ILO Constitution. In view of these facts and their recognition in consultations with Congress, rejoining the ILO had a fully sufficient legal basis.

Dept. of State File No. P81 0004-1083.

See, further, the 1977 Digest, pp. 39-41, and the 1975 Digest, pp. 70-73.

By Exec. Order 12216, dated June 18, 1980, President Carter established the President's Committee on the International Labor Organization, consisting of the Secretaries of Labor, State, and Commerce, the Assistant to the President for National Security Affairs, and the Presidents of the AFL-CIO and the U.S. Council of the International Chamber of Commerce (see, post), or their designated representatives. The Committee was charged with monitoring and assessing the work of the International Labor Organization and making recommendations to the President or other officers of the Federal government, including the Secretary of Labor. "With due recognition that in the ILO tripartite system, government, employer, and employee representatives retain the right to take positions independent of one another, the Committee... [was to] exert its best efforts to develop a coordinated position as to United States policy on ILO issues."

3 CFR, 1980 Comp. (Jan. 1, 1981), pp. 259-260.

The Committee's existence was continued to Dec. 31, 1982 by Exec. Order 12258, Dec. 31, 1980, ibid., pp. 305, 306, and to Sept. 30, 1984, by Exec. Order 12399, Dec. 31, 1982, Fed. Reg., Vol. 48, No. 3, Jan. 5, 1983, p. 379.

In Dec. 1979, an informally constituted Cabinet-level committee on the International Labor Organization decided to establish a group of legal experts to reexamine U.S. law and practice in regard to key International Labor Organization conventions, in order to consider recommending their ratification by the United States. Known as the Tripartite Advisory Panel on International Labor Standards, TAPILS, the group

of legal experts held its first meeting on Oct. 6, 1980 (the President's Committee on the International Labor Organization had been formally established by Exec. Order 12216, ante). The Panel is under the chairmanship of the Solicitor of the Dept. of Labor and consists, as does the President's Committee, of representatives from the Depts. of Labor, State, and Commerce, the U.S. Council of the International Chamber of Commerce (see, post), and the AFL-CIO. The Panel's terms of reference require it to:

1. develop analyses of the degree of U.S. compliance with selected ILO Conventions, in particular the human rights Conventions;

2. examine the impact of ratification on existing and developing domestic labor law; 3. examine the advantages and disadvantages of differing approaches to ratification, including the designation of such Conventions as self-executing or nonself-executing treaties, ratification with specified understandings or reservations, etc.;

4. consider the appropriateness of using the ILO 1947 procedure for obtaining official recognition concerning the implementation of unratified Conventions; and 5. consider such other questions and issues as may be appropriate to reaching conclusions.

Dept. of State File No. P83 0137-1382.

On Sept. 16, 1981, the membership of the U.S. Council of the International Chamber of Commerce voted to change its name to the "United States Council for International Business."

D.

INTERNATIONAL STAFF AND STRUCTURE

E.

FINANCING

Tax Reimbursement Agreements

South Pacific Commission

In an exchange of letters between John P. Condon, the American Ambassador at Suva, Fiji and Representative for the United States on the South Pacific Commission, and M. Young Vivian, SecretaryGeneral of the South Pacific Commission, at Noumea, dated March 31 and April 15, 1980, respectively, the United States and the South Pacific Commission formalized certain tax reimbursement procedures, effective as of January 1, 1980.

Under the agreement the South Pacific Commission would reimburse its staff members who were United States citizens, or otherwise liable to pay United States income taxes, for any United States income taxes paid on their South Pacific Commission income through a special suspense account. The United States Government in turn would pay a tax equalization charge as part of its annual payment to the South Pacific Commission to compensate the special suspense account. The tax equalization charge would cover actual reimbursements made by the Commission to employees subject to United States income taxes but would not cover employees paid from voluntary funds.

TIAS 9752; 32 UST 1025; entered into force, Apr. 15, 1980, effective Jan. 1, 1980. The agreement was superseded by an agreement effected through an exchange of notes at Suva and Noumea, dated Dec. 21, 1981 and Apr. 28, 1982, respectively. TIAS 10384; entered into force, Apr. 28, 1982, effective Jan. 1, 1982.

The U.S. Government entered into a similar agreement with the International Coffee Organization, by an exchange of letters at London, Mar. 20 and 25, 1980, between American Ambassador Kingman Brewster and Alexandre F. Beltrão, Executive Director of the Organization. TIAS 9739; 32 UST 929; entered into force, Mar. 31, 1980, effective Jan. 1, 1980. This agreement was superseded by an agreement effected through an exchange of letters at London between American Ambassador John J. Louis, Jr., and Executive Director Beltrão, dated Dec. 17, 1982; TIAS 10584; entered into force, Jan. 1, 1983. The new agreement applied to reimbursements made by the Organization on taxes paid on income from the Organization earned in 1982 or thereafter.

The U.S. Government entered into a similar agreement with the International Hydrographic Bureau, by an exchange of letters between Richard L. McCall, Assistant Secretary of State for International Organization Affairs, and Rear Adm. G.S. Ritchie, President of the Directing Committee, International Hydrographic Bureau, signed at Washington and Monaco, on Aug. 27 and Oct. 16, 1980 respectively; TIAS 9922; 32 UST 3999; entered into force, Oct. 16, 1980, effective Jan. 1, 1980.

This agreement was superseded by an agreement effected through an exchange of letters between Consul General Edward M. Sacchet and Rear Adm. F.L. Fraser, President of the Directing Committee, signed at Marseilles and Monaco, on Dec. 7 and 13, 1982, respectively, TIAS ; entered into force Jan. 1, 1983. The new agreement applied to reimbursements made by the organization on taxes paid on income from the organization earned in 1982 or thereafter.

The United States entered into a similar agreement with the International Sugar Organization, by an exchange of letters at London, dated July 10, 1980, between American Ambassador Kingman Brewster and William K. Miller, Executive Director of the Organization. TIAS 9807; 32 UST 1912; entered into force, July 10, 1980; effective Jan. 1, 1980. This agreement was superseded by an agreement effected through an exchange of notes at London between American Ambassador John J. Louis, Jr. and Executive Director Miller, dated Dec. 17, 1982; TIAS 10583; entered into force, Jan. 1, 1983. The new agreement applied to reimbursements made by the Organization on taxes paid on income from the Organization earned in 1982 or thereafter.

The U.S. Government also entered into a similar agreement with the Customs Cooperation Council, effected by an exchange of letters at Brussels between Ambassador Thomas O. Enders, U.S. Representative to the European Communities, and Sir Ronald Radford, Secretary General, Customs Cooperation Council, dated May 30 and June 23, 1980, respectively; TIAS 9801; 32 UST 1830; entered into force, June 23, 1980, effective Jan. 1, 1980. By a diplomatic note from the U.S. Mission to the European Communities to the Council, dated Sept. 20, 1981, the United States gave notice of its intention to terminate the agreement. Files, L/T. See, also, Dept. of State telegram 237653 to the Mission, dated Sept. 4, 1981.

For general instructions from the Dept. of State to various U.S. posts abroad regarding termination, on Dec. 31, 1982, of earlier bilateral tax reimbursement agreements (TRA) with international organizations, see Dept. of State telegrams 340439, Dec. 24, 1981 and 338101, Dec. 4, 1982. A number of such agreements were renegotiated.