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642 F.2d at 625-626, 628-629, 632-635, 640.

See, also, the 1978 Digest, pp. 178-181.

Parens Patriae

Puerto Rican Temporary Farm Workers

Commonwealth of Puerto Rico v. Alfred L. Snapp & Sons, Inc., 632 F.2d 365 (4th Cir. 1980), aff'd, 458 U.S. 592 (1982), was a suit to enjoin some fifty-two Virginia apple growers from violating the WagnerPeyser Act of 1933, 48 Stat. 113, 29 U.S.C. 49 et seq. (which established a nationwide employment service within the Department of Labor) and the Immigration and Nationality Act of 1952, 66 Stat. 163, 8 U.S.C. 1101 et seq. (section 101(a)(15)(H)(ii) of which authorizes admission of temporary foreign workers only "if unemployed persons capable of performing such service or labor cannot be found in this country", i.e., within the domestic United States labor force).

In August 1978, apple growers in several States, including Virginia, who had already filed "clearance orders" (requests) for domestic temporary apple-pickers with their state employment agencies, obtained a United States District Court order for a certain number of foreign workers to be allowed to enter to ensure the timely harvesting of the 1978 "record" apple crop. (The order had been issued in a different action, brought by the apple growers against the Secretary of Labor and the Commissioner of the Immigration and Naturalization Service, in which Puerto Rico had been permitted to intervene to represent its residents' interests in these work opportunities.) Jamaican farm workers were admitted under this order. Although the apple growers had assured the District Court that they recognized their obligation to give Puerto Rican workers priority, many of the fifty-two defendants in Snapp allegedly refused to employ most of the Puerto Ricans who had arrived afterwards and had allegedly fired most of those actually hired within a short time on the grounds of alleged unproductivity.

In January 1979 the Commonwealth of Puerto Rico filed suit, alleging that of the 2,318 job requests forwarded through the Department of Labor's Employment and Training Administration, 787 had come from the defendants, and alleging that the defendants had violated the statutes, ante, and implementing regulations thereunder, by failing to hire qualified Puerto Rican migrant farm workers, by subjecting the workers hired to more burdensome working conditions than those established for temporary foreign workers (the Jamaicans), and by improperly terminating the Puerto Rican workers' employment. Alleging that the discrimination against Puerto Rican farm workers deprived the Commonwealth of its right to participate in the Federal employment service system and thereby

caused irreparable injury to the Commonwealth's efforts to promote employment opportunities for its citizens and reduce unemployment in the Commonwealth, Puerto Rico sought declaratory relief with respect to the defendants' alleged past practices and injunctive relief requiring the defendants to comply in the future with the statutes and regulations. The United States District Court for the Western District of Virginia, granting the defendants' motion to dismiss, held that neither the segment of the Puerto Rican population affected nor the injury to the Puerto Rican economy was of "sufficient magnitude to permit this court to grant parens patriae standing."

On appeal, a three-judge panel of the United States Court of Appeals for the Fourth Circuit on October 9, 1980 reversed the order of dismissal and remanded the case for further action. While emphasizing that the sole issue on appeal was the question of parens patriae standing, Circuit Judge James M. Sprouse noted that the Court must accept as true all material allegations of the complaint for purposes of considering the correctness of the motion to dismiss. He then pointed out that the relatively small number of Puerto Rican temporary farm workers affected did not "accurately measure the potential effect of the damaged recruitment efforts" on all Puerto Rican citizens. The Court also noted the "almost unmanageable unemployment problem" in Puerto Rico; and efforts to "stigmatize" its labor force, the Court said, “carried a universal sting." The Department of Labor's apparent inability to grant Puerto Ricans equal treatment with other United States citizens or even with foreign temporary workers, the Court found, "must certainly have an effect" permeating the entire island.

Judge Sprouse concluded that Puerto Rico had standing to maintain the action in a parens patriae capacity. There had never been “a hard and fast game of numbers" in determining whether a substantial portion of citizens were affected for purposes of a parens patriae action, the Court stated. The requirement was satisfied whether they are affected directly or indirectly. Where a sovereign seeks to “protect a vital aspect of the general welfare of a substantial portion of its citizenry" from serious, harmful action, the extent and pervasiveness of the harm to the society must be weighed, the Court held, and not "the directness of the injury to particular individuals."

632 F.2d at 369-370.

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The Trust Territory of the Pacific Islands

Political Status Developments

On October 31, 1980, representatives of the United States Government and the Governments of the Marshall Islands and the Federated States of Micronesia initialed a Compact of Free Association which, when finally approved, would form the basis for termination of the United Nations Trusteeship and emergence of these entities as sovereign, freely associated states. The Government of Palau was unable to send representatives to this meeting, but the Presidentelect of Palau subsequently initialed the Compact on November 17, 1980.

The Compact establishes the terms of the continuing close relationship between the United States and the Freely Associated States. Under the Compact, the United States would have authority for defense and security matters, while the Marshall Islands, the Federated States of Micronesia, and Palau would have authority for other foreign relations matters and domestic affairs. The Compact also sets forth the financial and other types of assistance which the United States would provide and covers other subjects of mutual concern and inter-relationship, including environmental regulations, trade, finance, and taxation. The Compact is terminable by either party or by mutual agreement in accordance with its terms, but the defense and aid provisions would remain in effect for a minimum fifteenyear period.

A White House announcement released on October 31, 1980, continued:

During several months following today's initialing ceremony, negotiators for all of the governments involved will conclude their work on a dozen or more detailed subsidiary agreements covering such subjects as telecommunications, extradition, and military land-use and operating rights. Once these subsidiary agreements have been completed, the Compact of Free Association will be formally signed. At that point the Compact will be presented to the voters of Micronesia for approval by plebiscite and submitted to the United States Congress as a joint resolution for enactment into law. If the Compact is approved, the United States will present the completed arrangements to the United Nations and seek termination of the Trusteeship Agreement. The United States strategic trusteeship in Micronesia is the last of the 11 U.N. trusteeships established after World War II.

Palau, the fourth party to the current negotiations, was unable to send a delegation to Washington this week, because the voters of this small island group in the Western Carolines go to the polls on November 4 to elect their first national government. That government will take office on January 1, 1981, whereas elected govern

ments took office in the Marshall Islands and the Federated States of Micronesia in May 1979. In a letter dated October 25, however, the Palauan negotiators informed Ambassador [Peter R.] Rosenblatt [the President's Personal Representative for Micronesian Status Negotiations] that they would meet with him in Washington... with a view to concluding negotiations and initialing the Compact and several closely related agreements.

Marshallese President Amata Kabua had initialed an earlier version of the Compact with Ambassador Rosenblatt at Kona, Hawaii, on January 14, 1980, but the document initialed today contains numerous changes from the January version, several of which were introduced by the Marshallese themselves.

Another district of the Trust Territory, the Northern Mariana Islands, in 1975 approved an agreement establishing an even closer relationship with the United States through commonwealth status. Residents of the Northern Marianas have since elected their own Governor and legislature, but the Commonwealth will come into full legal existence only upon termination of the Trusteeship Agreement.

There is no exact precedent in international law or U.S. constitutional practice for the free association status which the three Micronesian entities have chosen. The autonomy which the Micronesian states will exercise exceeds that of U.S. territories, while U.S. defense authority in the freely associated states is comprehensive and therefore of a different nature from the treaty relationships with even America's closest allies.

Weekly Comp. of Pres. Docs., Vol. 16, No. 45, Nov. 10, 1980, pp. 2613-2615; U.N. Doc. T/1827, Nov. 12, 1980.

See, also, Dept. of State, 33rd Annual Report to the United Nations on the Administration of the Trust Territory of the Pacific Islands, Oct. 1, 1979 to Sept. 30, 1980, Dept. of State Publication 9181 (1981), Pt. X, "Conclusions and Recommendations of the Trusteeship Council", "Political Advancement", pp. 124-125, "Constitutional Developments and Progress towards Self-Government or Independence", pp. 129-131, and Pt. XI, "Summary and Conclusions", pp. 132-134. (The report was also distributed as U.N. Doc. T/1830, May 4, 1981.)

Following a comprehensive review of United States policy toward the Trust Territory of the Pacific Islands in 1981, negotiations were resumed from Oct. 3-9, 1981, at Maui, Hawaii, on some revisions to the initialed Compact and the remaining related agreements. The Compact and its related documents were signed by the United States and the Marshall Islands on May 30, 1982, Palau on Aug. 26, 1982, and the Federated States of Micronesia on Oct. 1, 1982. Because of subsequent revisions and the conclusion of an additional subsidiary agreement, the United States and the Marshall Islands signed the Compact and all of its subsidiary agreements again on June 25, 1983. (The text of the Compact of Free Association may be found in P.L. 99-239, approved Jan. 14, 1986, 99 Stat. 1770; see, post.)

On Feb. 10, 1983, the people of Palau approved the Compact of Free Association by 62% in a U.N.-observed plebiscite. However, a separate question on the plebiscite ballot aimed at meeting procedural requirements of the Palau constitution with respect to nuclear weapons and materials, failed to gain the three-fourths approval required for that question. The question, "Do you approve of the agreement concerning radioactive, chemical and biological materials concluded pursuant to section 314 of the Compact of Free Association?", was in accordance with article II, section 3, of the Palau Constitution (that became effective Jan. 1, 1980), which reads:

Major governmental powers including but not limited to defense, security or foreign affairs may be delegated by treaty, compact or other agreement between the sovereign Republic of Palau and another sovereign nation or international organization, provided such treaty, compact or agreement shall be approved by not less than two-thirds (2/3) of the members of each house of the Olbiil Era Kelulau and by a majority of the votes cast in a nationwide referendum conducted for such purpose, provided that any such agreement which authorizes use, testing, storage or disposal of nuclear, toxic chemical, gas or biological weapons intended for use in warfare shall require approval of not less than three-fourths (3/4) of the votes cast in such referendum.

The Palauan Supreme Court decided on the basis of these plebiscite results that the Compact could not be deemed approved under domestic law. On May 23, 1984, Palau and the United States signed a revised Compact which, by its terms, required 75% approval by popular vote. This revised Compact received 67% approval in a referendum conducted by the Government of Palau on September 4, 1984. The Compact was then further revised in order to define permissible United States activity so that 75% approval would not be required under the Constitution of Palau. This Compact was approved by 72% in a U.N.-observed plebiscite held on February 21, 1986. On February 25, 1986, the President of Palau certified to the United States that this revised Compact had been approved in accordance with the constitutional processes of Palau. The Compact of Free Association received 79% approval in a U.N.-observed plebiscite held in the Federated States of Micronesia on June 21, 1983, and 58% approval in the Marshall Islands plebiscite (also U.N.-observed) on September 7, 1983.

Reports of the United Nations Visiting Missions are contained in United Nations Documents T/1851 (Palau) (TCOR, Fiftieth Sess., Suppl. No. 3) (1984); T/1860 (Federated States of Micronesia) (TCOR, Fifty-first Sess., Suppl. No. 1) (1984); and T/1861 (Marshall Islands) (TCOR, Fifty-first sess., Suppl. No. 2) (1984).

The Compact of Free Association between the United States and the Governments of the Federated States of Micronesia and the Marshall Islands, along with its subsidiary agreements, was submitted by President Ronald Reagan to the U.S. Congress for its approval on March 30, 1984. The President's transmittal message, a draft Joint Resolution of approval, and the Compact and related agreements are contained in House Doc. 98-192, March 30, 1984. The resolution of approval was passed and was signed by the President on January 14, 1986, P.L. 99-239, 99 Stat. 1770.

For the Trusteeship Agreement for the Former Japanese Mandated Islands, approved by the U.N. Security Council, Apr. 2, 1947, and by the President of the United States, July 18, 1947, pursuant to authority granted by a joint resolution of the Congress, July 18, 1947 (61 Stat. 397), see TIAS 1665; 61 Stat. 3301; 12 Bevans 951; entered into force July 18, 1947.

Following President Carter's message of February 14, 1980 to the Congress, describing a comprehensive Federal territorial policy for Guam, the United States Virgin Islands, American Samoa, and the Northern Mariana Islands (see this Digest, Ch. 2, §5, ante), the Soviet Acting Permanent Representative to the United Nations transmitted to the United Nations Secretary General, for circulation as an official document of the General Assembly and of the Security Council, a statement dated February 21, 1980, that set out various allegations and charges, all false, regarding United States policy goals in administering the Trust Territories.

The United States Government took exception to the Soviet allegations and charges in a letter from Ambassador Donald F. McHenry, the United States Permanent Representative to the United Nations,

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