and the Commonwealth of Puerto Rico to decisions made by the people of Puerto Rico in free democratic elections.

Press Release USUN-111(75), Oct. 8, 1975.

Uninhabited Territories

Gordon B. Baldwin, Counselor on International Law, Department of State, wrote a memorandum to the Legal Adviser of the Department on August 7, 1975, in which he concluded that the administration of Howland, Baker, and Jarvis Islands in the Pacific Ocean as part of the United States Wildlife Refuge System sufficed to evidence continued United States sovereignty over the islands. His opinion reinforced the conclusions reached by C. Brewster Chapman, Jr., Assistant Solicitor for Territories, Division of General Law, in the Department of the Interior, whose memorandum of September 10, 1974, to the Director of Territorial Affairs in that Department, had maintained that official visits by the Coast Guard or the Navy were not legally required to assure continued U.S. sovereignty over the islands.

Mr. Chapman's memorandum on the subject, which had been referred to the Department of State, reads, in part, as follows:

The United States asserts original sovereignty over Howland, Baker and Jarvis Islands pursuant to the provisions of the Guano Islands Act of 1856, 48 U.S.C. § 1411, et seq. Administrative jurisdiction over the islands was transferred to the Secretary of the Interior in 1936 by Executive Order 7368. The Guano Islands Act provides that nothing therein shall be construed as obliging the United States to retain possession of such islands after the guano has been removed. Presumptively, therefore, failure to show some intent by the United States to retain possession might be construed as an abandonment of such islands. For this reason, perhaps, and because the islands are otherwise uninhabited, the annual visits by the Coast Guard were established in years gone by as a token act, asserting continuing sovereignty. Also, the Coast Guard may have had to service the light beacons at one time. In any event, it is my opinion that such annual visits are not absolutely necessary to insure the continuing exercise of sovereignty by the United States over these islands. My opinion is further reinforced by the fact that on July 24, 1974, by Secretarial Order, these islands were transferred from the administrative responsibility of your office to the United States Fish and Wildlife Service to be administered as a part of the National Wildlife Refuge System, 30 Fed. Reg. 27930, August 2, 1974. Since the islands are now included for administration under an ongoing national program relating to wildlife, we do not believe that U.S. sovereignty could be disputed on any grounds of abandonment. Furthermore, the

Fish and Wildlife Service undoubtedly will make periodic visits to these refuges. This can be checked out. Therefore, should visits be necessary to prove continuing assertion of sovereignty, we believe that the Fish and Wildlife Service activities there will suffice.

In his concurring memorandum of August 7, 1975, Mr. Baldwin stated:

. . . In addition to the statute cited, 48 U.S.C. 644a vests Federal jurisdiction over these islands in the Federal District Court for Hawaii. In addition, the laws relating to the protection of National Wildlife Refuges require oversight by the Fish and Wildlife Service. These include criminal laws relating to game, fish and flora conservation (see 16 U.S.C. Sec. 668dd).

The practice of nations requires that lands be "occupied" if sovereignty claims are to be honored. The United States, the Supreme Court has held, has authority under international law to acquire territory by discovery and occupation and to exercise jurisdiction over it. Jones v. U.S. 137 U.S. 202, 212 (1890). Some 19th Century writers claimed that "occupation" is established by permanent habitation. Indeed the U.S. claim to these islands was evidenced by their discovery, their exploitation as guano sources, then their use for air navigation, and their permanent occupation by some maintenance personnel. However, a claim of "occupation" can be made in other ways-such as by administering these islands as part of a U.S. program of wildlife preservation. You can safely concur with the Chapman memorandum by insisting that these islands be administered according to the statutes and orders that established them as preserves. If these islands were occupied by squatters, or by persons not authorized by the Fish and Wildlife Service then U.S. law is breached and the Fish and Wildlife Service should respond. A failure to enforce our conservation laws, therefore, over a significant period of time might lead to a claim that the U.S. had abandoned the islands. What is a significant period of time? The "law" is not clear at all-but when Great Britain failed to assert its claims on Jarvis Island for a quarter century, the U.S. appears to have claimed that Britain abandoned them. Surely a visit or occasional fly-over for the purpose of inspecting would suffice.

United States rights to these islands are currently noted in three foreign atlases-the Great Soviet Atlas, the London Times Atlas, and the Pergamon Atlas (Warsaw and Oxford).

The question of what evidence suffices to show continuing claims to an island claimed under the "Guano Act" has arisen in connection with Navassa Island-an uninhabited isle in the Jamaica Straits. In 1906 the State Department insisted that "internationally speaking" the United States retained its claim despite the failure to exploit or physically occupy it. In 1915 the United States successfully resisted a protest by Haiti when the United States erected a lighthouse on Navassa. Nevertheless Haitian claims to this island persisted through 1951, based on a theory of contiguity. In the Island of Palmas Case (U.S. v. the

Netherlands, 1928) the arbitrator stated that "title of contiguity... has no foundation in international law." In any event there are no grounds for a contiguity claim to Howland, Baker and Jarvis Islands-located in nearly the most remote parts of the Pacific Ocean.

My conclusion is supported by three international_adjudications, the Island of Palmas Arbitration, the Eastern Greenland Case and the Clipperton Island Case.

In the Eastern Greenland Case, the Permanent Court of International Justice recognized that in thinly populated or uninhabited areas it was not possible to maintain continuous physical occupation, and that in the absence of a competing claim, very little actual exercise of sovereign rights was required. Judge Huber, in the Island of Palmas decision, further recognized that:

sovereignty cannot be exercised in fact at every moment on every point of territory. The intermittence and discontinuity compatible with the maintenance of the right necessarily differ according as [sic] inhabited or uninhabited regions are involved,

2 Whiteman Digest, 1034

In both the Island of Palmas and the Eastern Greenland Cases, displays of sovereignty which were quite intermittent, irregular, and with long intervening intervals were sufficient to show "occupation." In the Clipperton Island Case an initial display of sovereignty over an uninhabited island was sufficient to maintain a claim which was neither disputed nor shown to have been abandoned by some affirmative act.

Dept. of State File No. P75 0146-754.

§ 6 Trust Territories

The Trust Territory of the Pacific Islands

Social Security

Deputy Secretary of State Robert S. Ingersoll, in a letter of January 13, 1975, to Secretary of the Interior Rogers C. B. Morton, stated the opinion of the Department of State that the 1947 Trusteeship Agreement between the United States and the United Nations Security Council (TIAS 1665; 61 Stat. 3301; 12 Bevans 951; entered into force July 18, 1947) is a treaty of the United States within the meaning of Section 202(t)(3) of the Social Security Act, 42 U.S.C. 402(t)(3). In a follow-up letter dated April 23, 1975, Deputy Secretary Ingersoll added that the Department, having reviewed the question of whether it would be contrary to U.S. obligations under the Trusteeship Agreement for the Social Security Administration to refuse to make Social Security payments to citizens of the Trust Territory residing there, had

determined that a refusal to make such payments would not be contrary to U.S. obligations under the Trusteeship Agreement. The Department's conclusion was based on a finding that the relevant terms of the Agreement, in particular Articles 3 and 6, are broad in language and endow the United States with a great deal of latitude and discretion in the implementation of its obligations under the Agreement.

The Deputy Secretary advised, however, that the United States should exercise the discretion it is permitted under the Agreement in a manner that would give the fullest possible implementation to the general obligations which the United States had assumed under the Agreement particularly in respect of Article 6. That article imposes obligations on the United States, inter alia, to promote the economic advancement and self-sufficiency of the inhabitants of the Trust Territory, to protect them without discrimination from social abuses, and to promote their social advancement. The Deputy Secretary recommended that, if possible within the authority of the agencies concerned, Social Security payments be made to citizens of the Trust Territory residing there.

Dept. of State File No. P75 0068-634.

Sec. 202(t)(1) of the Social Security Act, 42 U.S.C. 402(t)(1), prohibits the payment of benefits to any individual who is not a citizen or national of the United States and who is outside the United States for more than six months. Sec. 202(t)(3) provides that the prohibition "shall not apply in any case where its application would be contrary to any treaty obligation of the United States in effect on August 1, 1956."

Arts. 3 and 6 of the 1947 Trusteeship Agreement between the United States and the United Nations Security Council read as follows:

Article 3

The administering authority shall have full powers of administration, legislation, and jurisdiction over the territory subject to the provisions of this agreement, and may apply to the trust territory, subject to any modifications which the administering authority may consider desirable, such of the laws of the United States as it may deem appropriate to local conditions and requirements.

Article 6

In discharging its obligations under Article 76(b) of the Charter, the administering authority shall:

1. foster the development of such political institutions as are suited to the trust territory and shall promote the development of the inhabitants of the trust territory toward self-government or independence, as may be appropriate to the particular circumstances of the trust territory and its peoples and the freely expressed wishes of the peoples concerned; and to this end shall give to the inhabitants of the trust territory a progressively increasing share in the administrative services in the territory; shall develop their participation in government; shall give due recognition to the customs of the inhabitants in providing a system of law for the territory; and shall take other appropriate measures toward these ends;

2. promote the economic advancement and self-sufficiency of the inhabitants, and to this end shall regulate the use of natural resources; encourage the development of fisheries, agriculture, and industries; protect the inhabitants against the loss of their lands and resources; and improve the means of transportation and communication;

3. promote the social advancement of the inhabitants, and to this end shall protect the rights and fundamental freedoms of all elements of the population without discrimination; protect the health of the inhabitants; control the traffic in arms and ammunition, opium and other dangerous drugs, and alcohol and other spiritous beverages; and institute such other regulations as may be necessary to protect the inhabitants against social abuses; and 4. promote the educational advancement of the inhabitants, and to this end shall take steps toward the establishment of a general system of elementary education; facilitate the vocational and cultural advancement of the population; and shall encourage qualified students to pursue higher education, including training on the professional level.

Service in U.S. Armed Forces

Linwood Holton, Assistant Secretary of State for Congressional Relations, in a letter dated January 31, 1975, responded to a query from Congresswoman Patsy T. Mink concerning the role of Trust Territory residents in the armed forces of the United States. His letter reads in part as follows:

Both the United States Army and Air Force are prohibited by statute from enlisting aliens (including Trust Territory citizens) who have not been lawfully admitted to the United States for permanent residence (10 U.S.C §§ 3253 and 8253). Though the Navy is not under a similar statutory restriction, we are informed by the Department of Defense that Navy recruiting regulations impose the same requirement. As you know, Article 5 of the Trusteeship Agreement describes the uses the United States may make of "volunteer forces . from the Trust Territory . . ." Since we do not consider citizens or former residents of the Trust Territory admitted to the United States for permanent residence as being "from the Trust Territory" for purposes of this article, the above-described requirements for enlistment in our armed forces preclude our enlisting anyone to whom this article would apply. Thus, as a practical matter, the question whether there are any restrictions on how and where Trust Territory residents may serve in our armed forces does not arise.

Dept. of State File No. P75 0027-2207.

Art. 5 of the Trusteeship Agreement between the United States and the United Nations for the Former Japanese Mandated Islands (TIAS 1665; 61 Stat. 3301; 12 Bevans 951; entered into force July 18, 1947) provides in part:

In discharging its obligations under Article 76(a) and Article 84, of the Charter, the administering authority shall ensure that the trust territory shall play its part, in accordance with the Charter of the United Nations, in the maintenance of international peace and security. To this end the administering authority shall be entitled: