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thirds of the Senators present concur; and he shall nominate and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Thus, in the exercise of treaty-making powers, there are prerogatives and roles for the executive and legislative branches of government. This allocation and separation of powers is fundamental to our constitutional system.
In practice, the effective conduct of the foreign relations of the United States requires close coordination between the legislative and executive branches of our government in carrying out their respective constitutional responsibilities with regard to the making of treaties. However, as the Supreme Court has stated, the limits of those responsibilities are clear:
[The President) makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. (U.S. v. Curtiss-Wright Export Corp., 299 U.S.
304, 319 (1936).) Accordingly, legislation purporting to preclude the President from negotiating treaty terms which he considers to be in the national interest would not be a proper subject for congressional action under the Constitution. Similarly, in exercising a proper legislative function, such as the appropriation of funds for the conduct of executive branch activities, the Congress may not properly impose conditions which would otherwise be unconstitutional. See Henkin, Foreign Affairs and the Constitution, p. 113. Just as Congress cannot limit who the President nominates for an ambassadorship, so it cannot restrict the subject matter of treaties to be negotiated and submitted to the Senate.
It is, therefore, the opinion of the Department of State that inasmuch as Section 104 of H.R. 8121 purports to restrict the President in the exercise of a power exclusively reserved to him by the Constitution, it cannot be considered a constitutionally valid exercise of the legislative authority of the Congress.
Dept. of State File L/ARA.
On September 18, 1975, the Committee of Conference of the Senate and House of Representatives on the State Department appropriation bill submitted a conference report noting technical disagreement on the proposed Snyder amendment and reporting compromise language to be offered on the part of the managers. On September 24, 1975, the House of Representatives voted 203 to 197 to stand by the earlier Snyder amendment, but on October 7, 1975, the House of Representatives reversed itself and agreed to the compromise language, which had been expressly supported by the Administration after it emerged from a House-Senate conference committee on October 6.
Cong. Rec., Vol. 121, No. 137, Sept. 18, 1975, p. H 8891 (daily ed.); id., No. 141, Sept. 24, 1975, pp. H 9054–9064; id., No. 150, Oct. 7, 1975, p. H 9721.
Section 104 of the Departments of State, Justice, and Commerce, the Judiciary, and Related Agencies Appropriation Act, 1976, as approved by the President on October 21, 1975 (P.L. 94-121; 89 Stat. 617), states:
It is the sense of the Congress that any new Panama Canal treaty or agreement must protect the vital interests of the United States in the Canal Zone and in the operation, maintenance, property and defense of the Panama Canal.
Ambassador-at-Large Ellsworth Bunker, Chief U.S. Negotiator for the Panama Canal Treaty, in an address to the World Affairs Council at Los Angeles on December 2, 1975, summarized the status of the negotiations as follows:
We have reached agreement in principle with the Panamanians on three major issues:
- Jurisdiction: Jurisdiction over the Zone area will pass to Panama in a transitional fashion.
The United States will retain the right to use those areas necessary for the operation, maintenance and defense of the canal.
-Canal Operation: During the treaty's lifetime the United States will have the primary responsibility for the operation of the canal.
There will be a growing participation of Panamanian nationals at all levels in day-to-day operations in preparation for Panama's assumption of responsibility for canal operation at the treaty's termination.
The Panamanian negotiators understand that there are a great many positions for which training will be required over a long period of time and that the only sensible course is for Panamanian participation to begin in a modest way and grow gradually.
-Canal Defense: Panama recognizes the importance of the canal for our security.
As a result, the United States will have primary responsibility for the defense of the canal during the life of the treaty.
Panama will grant the United States “use rights" for defending the waterway; and Panama will participate in canal defense in accordance with its capabilities.
Several other issues remain to be resolved. They concern:
-the right of the United States to expand the canal should we wish to do so;
-the size and location of the land and water areas we will need for canal operation and defense;
-a mutually acceptable formula for the canal's neutrality and nondiscriminatory operation of the canal after the treaty's termination; and
-finally, the duration of the new treaty.
For the full text of Ambassador Bunker's address, see Dept. of State Bulletin, Vol. LXXIII, No. 1904, Dec. 22, 1975, pp. 881-885.
Ambassador Robert J. McCloskey, in a letter to Senator Adlai E. Stevenson III, dated December 3, 1975, commented on the international status of the Canal Zone and the treatment of the Zone for purposes of domestic U.S. legislation. The following is an excerpt from his letter:
The 1903 Treaty between the United States and Panama (TS 431; 33 Stat. 2234; 10 Bevans 663; entered into force February 26, 1904) grants to the United States all rights, power and authority within the Canal Zone which the United States would possess and exercise if it were the sovereign of the territory. As early as 1905, William Howard Taft, then Secretary of War, in referring to this grant in the 1903 Treaty, acknowledged that the very form in which the rights are conferred in the Treaty preserves the titular sovereignty over the Canal Zone in the Republic of Panama. The continuity of that position was underscored in 1959 when Deputy Under Secretary of State Livingston Merchant issued a public statement following a trip to Panama which said, in part, “... I assured ... [the President of Panama] that the policy of the U.S. Government with respect to the status of the Canal Zone remains as it had been stated more than 50 years ago to the effect that the United States recognizes that titular sovereignty over the Canal Zone remains in the Government of Panama."
It is true that the Supreme Court in Wilson v. Shaw, 204 U.S. 24 (1907), treated the Canal Zone as territory of the United States for purposes of establishing the authority of the U.S. Government to expend funds and engage in work in the Zone. However, the status of the Canal Zone has been treated in various other ways through the years for the purposes of U.S. domestic legislation. It is considered to be an organized territory of the United States for purposes of extradition; on the other hand, it is treated as foreign territory for purposes of customs duties and its ports are considered foreign ports for purposes of transportation of mail. None of these interpretations for domestic purposes has had any effect on the international status of the Canal Zone or on the nature of our treaty relationship with Panama.
Rear Admiral R. A. Ratti, Chief Counsel of the Coast Guard, Department of Transportation, rendered a legal opinion (G-LMI
5800) on February 13, 1975, concerning the applicability of the Vessel Bridge to Bridge Radio Telephone Act (33 U.S.C. 1201 et seq.) to deepwater ports located within the line of demarcation and licensed under the Deepwater Port Act of 1974 (P.L. 93-627; 88 Stat. 2126; approved January 3, 1975). In concluding that the Act would not apply to Federally licensed deepwater ports, the Chief Counsel noted the authority existing under the Deepwater Port Act to issue and enforce safety regulations in deepwater ports and their adjacent waters, as well as the international law basis for such regulation with respect to foreign vessels using such ports. He offered the following analysis:
Subsection 10(b) of the Deepwater Port Act of 1974, 33 U.S.C. 1509(b), authorizes the Secretary "to issue and enforce regulations with respect to . warning devices, safety equipment, and other matters relating to the promotion of safety of life and property in any deepwater port and the waters adjacent thereto.” Subsection 10(a), 33 U.S.C. 1509(a), authorizes the Secretary to "prescribe
procedures with respect to any deepwater port . . . required ... to ... prevent any adverse impact from the construction and operation of such deepwater port.” These two provisions provide adequate authority for the issuance and enforcement of regulations relating to the maintenance and use of radio telephone adjacent to deepwater ports (hereafter port).
under subsection 10(d) of the Deepwater Port Act, 33 U.S.C. 1509(d), the Secretary is directed to establish an appropriately sized safety zone around the port and to define by regulation the “permitted activities within such zone.” Such a zone is also authorized to be established during the period of the port's construction. Pursuant to this provision the Secretary (Coast Guard) may restrict vessel operation in the vicinity of a port being operated or constructed to vessels complying with the regulations relating to the maintenance and use of radio telephones.
The question of jurisdiction over foreign vessels operating at a port or in its vicinity may be raised. However, regardless of whether the international law basis for regulation stems from Article 2 of the Convention on the High Seas (to assure the reasonableness of the use of a minimal portion of the high seas by the deepwater port) or Article 9 of the Convention on the Territorial Sea and Contiguous Zone (as a “roadstead") regulations relating to the maintenance and use of radio telephone in the safety zone would be enforceable against foreign vessels using the port with the possible exception of a situation involv. ing force majeure. Subject to this exception, subsection 19(c) of the Deepwater Port Act, 33 U.S.C. 1518(c), limits foreign vessel
port access to vessels whose flag states have agreed to recognize United States jurisdiction within the safety zone.
It should be recognized that this provision is directed to vessels calling at or otherwise utilizing a port and does not apply to foreign vessels otherwise generally navigating in the area. The application of radio telephone regulations to these “passing" foreign vessels would be governed by their obligation to exercise their navigational right with reasonable regard to the correlative reasonable use of the high seas by the port. A reasonable criteria for delimitating the geographic extent of these obligations would be the safety zone. While the authority of the United States to institute and carry out enforcement action against "passing" foreign vessels which violate applicable regulations within a safety zone is a matter currently before the Third Law of the Sea Conference, and accordingly cannot be specified with precision here, it is clear that reasonable radio telephone regulations may be promulgated applicable to these vessels. At the very least, the continued failure of vessels of a particular flag state to comply with these regulations in the safety zone would provide grounds for the Coast Guard to request the Secretary of State to communicate an expression of protest to that state in accordance with section 11, 33 U.S.C. 1510.
Dept. of Transportation, Coast Guard Law Bulletin, No. 411, July 1975, pp. 4142.
Art. 2 of the Convention on the High Seas (TIAS 5200; 13 UST 2312; entered into force for the United States Sept. 30, 1962) provides, in part, that the freedoms of navigation, fishing, laying submarine cables and pipelines, and flying over the high seas, and other freedoms "which are recognized by the general principles of international law, shall be exercised by all states with reasonable regard to the interests of other states in their exercise of the freedom of the high seas." Art. 9 of the Convention on the Territorial Sea and the Contiguous Zone (TIAS 5639; 15 UST 1606; entered into force for the United States Sept. 10, 1964) provides in part: “Roadsteads which are normally used for the loading, unloading and anchoring of ships, and which would otherwise be situated wholly or partly outside the outer limit of the territorial sea, are included in the territorial sea."
The Chairman of the Third Committee at the Geneva session of the Third U.N. Conference on the Law of the Sea, which met March 19 to May 9, 1975, produced an informal single negotiating text, one part of which was entitled “Protection and Preservation of the Marine Environment.” It includes chapters on general provisions, global and regional cooperation, technical assistance, monitoring, environmental assessment, standards, enforcement responsibility and liability, sovereign immunity, and status of