2. The alternative text omits the phrase "prior to and during the negotiation of such agreement," which has a rigid appearance not entirely compatible with the agreed procedures, and also is unclear as to its meaning and effect. A literal reading would suggest the need for at least two consultations on each proposed agreement. The agreed procedures, on the other hand, contemplate some situations in which the Committee would be informed of a proposed agreement and, if there were no questions raised by the Committee, no further consultations would ensue. This might be the case, for example, when the proposed agreement is an extension of a previous agreement on the same subject, or is similar in form and content to numerous other agreements on the subject, and no significant changes are proposed. It would seem sufficient for the purpose of the resolution to specify that consulations should be timely.

3. Another difference is that the alternative text refers to "consultations with" rather than "the advice of" the Committee. This difference in language would not affect the content of the consultations. We are concerned that use of the word "advice" in this context might open the way for constitutional arguments that the Senate had improperly sought to delegate a constitutional role; and also that one branch or the other, or both, had failed to perform constitutional responsibilities in a given case, thus raising unnecessary questions about the validity of a treaty or other international agreement. We believe it would be far preferable to use the word "consult" which is consistent with the agreed procedures and avoids these questions. It seems beyond doubt that consultation on the form of a proposed international agreement is a constitutionally permissible procedure.

4. Finally, the alternative text makes explicit reference to agreed procedures between the Committee and the Secretary of State. This would make clear that the procedures contemplated by the resolution and the procedures agreed to in our recent exchange of correspondence are one and the same. It also would be very helpful in fostering general understanding of the Committee's intentions within the Government. Finally it would explicitly authorize a mechanism for resolving issues of application and administration of the resolution and the implementing procedures, such as determination of which agreements are deemed sufficiently significant to be encompassed.

In summary, the Department of State is committed to carrying out our recent understanding on improved consultation procedures regarding the form of international agreements. We question if a Senate resolution could be useful in reinforcing the understanding. If a resolution is proposed, however, for the reasons discussed above, we think the alternative text decribed above is preferable to the text originally introduced.

We are looking forward to cordial and effective cooperation between the executive and legislative branches in implementation of the newly agreed consultation procedures.

*Deferral of a Senate resolution would also provide sufficient time to examine the legal effect of this apparently unprecedented pro

cedure of a sense of the Senate resolution applicable to one of the Senate's exclusive constitutional powers (treaty ratification).

Dept. of State File No. P79 0154-2163.

The Senate passed S. Res. 536 by voice vote on September 8, 1978. Its operative paragraph read:

Sec. 2. It is the sense of the Senate that, in determining whether a particular international agreement should be submitted as a treaty, the President should have the timely advice of the Committee on Foreign Relations through agreed procedures established with the Secretary of State.

Cong. Rec., Vol. 124, No. 139 (daily ed., Sept. 8, 1978), pp. S14085–S14806.

86

International Acts Not Constituting
Agreements

Bonn Declaration, July 17, 1978

At the end of a two-day economic summit meeting held at Bonn, Germany, July 16-17, 1978 (see this Digest, Chapter 10, post), leaders of the Governments of Canada, France, the Federal Republic of Germany, Italy, Japan, the United Kingdom of Great Britain and Northern Ireland, and the United States of America issued a declaration summarizing the problems which the summit meeting had discussed and the commitments which the members of the meeting had agreed were necessary for their resolution.

Subsequently, Senator John J. Sparkman, Chairman of the Committee on Foreign Relations of the United States Senate, wrote to Secretary of State Cyrus R. Vance, under date of July 27, 1978, requesting the views of the Department of State regarding the legal significance of the declaration, and whether, and under what circumstances, such a declaration would be considered legally binding. The Department's reply, by a letter from Assistant Secretary for Congressional Relations Douglas J. Bennet, Jr., to Senator Sparkman, August 14, 1978, read, in part, as follows:

While the declaration issued in Bonn is an important political commitment, it is not an international agreement within the meaning of United States law or international law since the parties did not evidence an intent to be legally bound. There is no indication of intention to depart from the established international practice of concluding non-binding communiques at the conclusion of a summit meeting. Accordingly, while we expect that the Bonn summit participants will comply with the accord, it is not a legally binding commitment.

The circumstances under which such a declaration would be considered legally binding will depend on the specific facts involved as

measured against such criteria as intention of the parties to be bound in international law; significance of the arrangement; requisite specificity, including objective criteria for determining enforceability; the necessity for two or more parties to the arrangement; and the form of the document. I am enclosing a copy of a Department memorandum which discusses each of these criteria in more detail.

Dept. of State File No. P78 0130-0487.

For the text of the memorandum more fully discussing the Department's cri teria for deciding what constitutes an international agreement, ante, see the 1976 Digest, pp. 264-267.

Chapter 6

STATE TERRITORY, JURISDICTION, AND

JURISDICTIONAL IMMUNITIES

State Territory and Territorial Jurisdiction

Canal Zone

In its report on the Panama Canal Treaties, the Senate Committee on Foreign Relations discussed various legal issues, including the matter of "sovereignty." Concerning this question, the Committee stated:

(2) SOVEREIGNTY

Much confusion has surrounded the elusive concept of sovereignty and the issue of what sovereign interests the United States possesses in the Canal Zone. Whatever the term implies, and whatever such interests the United States holds, it seems clear that the phrase "territory .. belonging to the United States" subsumes land over which the United States exercises sovereign power, and that the disposal-of-property clause [Art. IV, § 3, cl. 2 of the Constitution] .. empowers the United States to transfer sovereignty as well as common law property rights. The Committee does not therefore believe that the issue of sovereignty-as a strictly legal matter-is relevant to the Canal debate. The United States can legally transfer its interests; the question is whether as a matter of policy it should. To whatever extent it is relevant, it appears that the United States does not possess sovereignty over the Canal Zone. . . . The Committee believes, based on the terms of the 1903 and 1936 treaties with Panama and court decisions, that Panama has always maintained titular sovereignty over that territory. The United States has held certain rights to exercise certain attributes of sovereignty, but those rights are distinguishable from the underlying sovereign interest of Panama over the Canal Zone.

Article III of the 1903 Treaty with Panama provides that the United States has

"... all the rights, power and authority within the Zone which the United States would possess and exercise if it were the sovereign of the territory within which said lands and waters. are located to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights, power of authority."

Article III of the 1936 Treaty of Friendship and Cooperation with Panama states that the Canal Zone is "the territory of the

Republic of Panama under the jurisdiction of the United States." One oft-quoted case, cited for the proposition that the United States has somehow acquired sovereign rights, is Wilson v. Shaw, 204 U.S. 24 (1907). In that case, the Court said that

"... it is hyper-critical to contend the title of the United States is imperfect, and that the territory described does not belong to this nation, because of omission of some of the technical terms used in ordinary conveyances of real property."

The real question in Wilson, however, was not which nation possessed sovereignty but rather whether the United States had sufficient interest and authority in the Zone to expend funds for the construction of the Canal. The Supreme Court found that the grant of authority in the 1903 Treaty was sufficient. The limits of the Court's holding were pointed out by the Supreme Court of the Canal Zone that same year in Canal Zone v. Coulson, 1 Canal Zone Supreme Court Reports 50 (1907), in which the defendant contended that the Court in Wilson had held that the Canal Zone was the territory of the United States and that, therefore, the Constitution applied in the Zone. The court rejected this contention and stated as follows:

"The Supreme Court did not hold more in that case [Wilson] than that the United States had the use, occupation and control in perpetuity of the Canal Zone. It is apparent from an examination of the treaty that the United States is not the owner in fee of the Canal Zone, but has the use, occupation and control of the same in perpetuity so long as they comply with the terms of the treaty ...

The Court went on to conclude that the rights of the United States in the Canal Zone were not such as to render the Constitution applicable.

In Vermilya-Brown Co. Inc. v. Connel, 335 U.S. 377 (1948), the Supreme Court was called upon to determine the status of certain United States military bases in Bermuda. The Court compared these bases to the Canal Zone, which the Court said was "admittedly territory over which we do not have sovereignty." The Court found that the ability of Congress to legislate depended not upon sovereignty, but upon control.

A variety of the other indices of sovereignty suggest that sovereignty over the Zone lies in the Government of Panama. In contrast to the sovereignty acquired by the United States through the purchases of the Louisiana Territory or Alaska, the United States did not acquire sovereignty; it acquired, under the 1903 Treaty, the use, occupation and control of the Canal Zone. This is made even more clear by the fact that the United States has made annual payments for privileges acquired in the Canal Zone-as contrasted with territories over which this country acquired full sovereign interest. Principles of "citizenship by birth" are not applicable in the Canal Zone; a person born in the Canal Zone to parents who are not citizens of the United States would not be a U.S. citizen, as that person would be were he born in the United States, the Virgin Islands, Guam, or some other United States possession or territory. In addi