CHAPTER III

FUNDAMENTAL RIGHTS AND DUTIES OF STATES

Article 18

No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. The foregoing principle prohibits not only armed force but also any other form of interference or attempted threat against the personality of the State or against its political, economic and cultural elements.

Article 20

The territory of a State is inviolable; it may not be the object, even temporarily, of military occupation or of other measures of force taken by another State, directly or indirectly, on any grounds whatever. No territorial acquisitions or special advantages obtained either by force or by other means of coercion shall be recognized.

Choice of Treaty Form

Air Services Agreement

In Greater Tampa Chamber of Commerce, et al. v. Brock Adams, et al., No. C.A. 78-0157, United States District Court for the District of Columbia, the plaintiffs, consisting of two civic and nonprofit Florida organizations, two Florida counties, the city of Cleveland, Ohio, a consumer organization, and eleven individual prospective overseas passengers, sued for declaratory and injunctive relief on a challenge to the legality and constitutionality of the Agreement Concerning Air Services between the United States and the United Kingdom, signed at Bermuda, July 23, 1977 (TIAS 8641; 28 UST 5367; entered into force July 23, 1977), commonly known as the "Bermuda II" agreement.

The plaintiffs contended that the agreement contravened the provisions of the Federal Aviation Act of 1958 (Public Law 85-726, August 23, 1958, 72 Stat. 731; 49 U.S.C. 1301 et seq.), as amended, and was therefore invalid, because it had not been ratified with the advice and consent of the United States Senate as a treaty. They also contended that the agreement should have been submitted to the Senate as a treaty, because it exceeded the scope of Presidential power to conclude international agreements on his own authority. They argued, further, that the course of its negotiation had been procedurally defective, in that the Civil Aeronautics Board (CAB) had, allegedly, not been consulted, as required by section 802 of the Federal Aviation Act, 49 U.S.C. 1462, and that Congress had not been consulted, as required by internal State Department procedures ("Circular 175", 11 Foreign Affairs Manual 710 et seq.).

Rejecting these arguments, District Judge June L. Green granted the defendants' alternative motion for summary judgment on a finding that the Bermuda II agreement did not conflict with the Federal Avi

ation Act. She also granted the defendants' motion to dismiss on grounds of nonjusticiability as to the following: (1) the amount of consultation with the Civil Aeronautics Board and members of Congress that had occurred during the negotiation process; and (2) the [non] submission of the Bermuda II agreement to the Senate as a treaty. In regard to her findings of nonjusticiability, Judge Green's memorandum opinion of November 29, 1978 (accompanying her order of the same date), read:

(footnotes selectively omitted)

*

II. Plaintiffs contend that the President lacked authority to negotiate Bermuda II because, "it goes beyond the scope of limited Presidential authority to conclude international agreements on his own authority." Since plaintiffs concede that the President has authority to conclude some international agreements, the only question for the Court's consideration at this juncture is whether this particular agreement exceeds the scope of that authority by conflicting with the Federal Aviation Act, 49 U.S.C. 1301, et seq. (hereinafter FAA).

Plaintiffs complain that Bermuda II limits the ability of the CAB to promote competition by certificating air carriers to provide such services as are required by the public necessity and convenience, § 401 (d) (1), 49 U.S.C. 1371(d)(1), and should therefore have been submitted for Senate ratification as a treaty. The Court notes at the outset that no court has ever ordered such extraordinary relief. It would undoubtedly constitute an unprecedented encroachment upon the discretion traditionally vested in the executive branch to determine the form international agreements shall take. Although the State Department has promulgated guidelines to aid the President in making such a determination, these guidelines are not of such a legally binding nature as to merit the Court's inquiry into the exercise of that discretion. Therefore, the Court concludes that the President's decision to negotiate an international agreement as a treaty or executive agreement is not reviewable. See Baker v. Carr, 369 U.S. 186, 204 (1962).

III. Plaintiffs also assert that procedural irregularities in [the] negotiation process require invalidation of Bermuda II. They argue that the CAB was not advised and consulted as required by § 802 of the FAA, 49 U.S.C. 1462 and that Congress was not consulted as required by internal State Department procedures, 11 Foreign Affairs Manual 710 et seq.

Since the record indisputably establishes that some consultation took place with both the CAB and Congress 5 plaintiffs really ask the Court to read a specific amount of consultation into the statute and the State Department's procedures. This the Court will not do. The Court is ill-equipped, considering the intricacies of negotiations with foreign governments and the pressures and demands incident thereto to require that a specified number of CAB and Congressional members be consulted. This is clearly a case where the

formulation and application of judicially discoverable and manageable standards would be impossible, Baker v. Carr, supra, because the climate of negotiations would vary depending on the relationship between the United States and the country involved. Thus the Court will not impose standards that may thwart the achievement of foreign policy objectives of the United States.

In the light of the foregoing analysis the Court concludes that... (3) the President's decision to conclude an international agreement as an executive agreement or a treaty involves an exercise of discretion not reviewable by this Court; (4) in the absence of statutorily prescribed procedures for consultation with members of the CAB and Congress, a factual showing that some consultation took place precludes further inquiry by the Court into the amount or nature of such consultations .

The power of the President to negotiate executive agreements solely on his own authority stems primarily from his Article II constitutional powers, which have been found sufficiently broad to uphold important agreements such as the Litvinov Agreement discussed by the Supreme Court in United States v. Belmont, 301 U.S. 324 (1937), and United States v. Pink, 315 U.S. 203 (1942).

49 U.S.C. 1462 provides:

The Secretary of State shall advise the Secretary of Transportation, the Board and the Secretary of Commerce, and consult with the Secretary of Transportation, the Board, or Secretary of Commerce as appropriate, concerning the negotiations of any agreement with foreign governments for the establishment or development of air navigation, including air routes and services.

5 The Vice Chairman of the CAB was a member of the interagency group that formulated U.S. policy for several months prior to negotiation of Bermuda II and was also a member of the delegation that concluded the agreement in London. Secondly, at least two members of Congress were consulted during the course of the Bermuda II negotiations, which lasted from February 1977 until July 1977. Specifically, Ambassador Boyd met with Senators Cannon and Adlai Stevenson and discussed the negotiations.

C.A. 78-0517 (D.D.C., 1978).

The brief filed on behalf of the defendants argued, as to the treaty/executive agreement issue, both its nonjusticiability as a political question and also the propriety (under the Civil Aeronautics Act of 1938 and its successor, the Federal Aviation Act of 1958) of continuing the historical use of the executive agreement form for bilateral air services agreements. Excerpts follow: (footnotes selectively omitted)

II. Plaintiffs' Complaint Presents a Nonjusticiable Political Question B. The President May, In The Exercise Of His Foreign Relations Powers, Negotiate Executive Agreements.

While the constitutional provisions enumerated above [Art. II. §§ 1, 2, and 3] do not specifically provide that the President may enter into executive agreements, as distinct from treaties, his authority to do so has been unquestioned

from at least 1792, when the first executive agreement was concluded." That authority flows from several sources, depending upon the nature of the executive agreement: a congressional directive, such as a prior statute or joint resolution proclaimed following negotiations; a treaty, or treaty in combination with a statute; and a statute operating in conjunction with the Constitution.13 Further, in certain areas, the President may conclude "pure" executive agreements predicated solely upon his Article II foreign relations powers. The legal authority for Bermuda II, an executive agreement regulating air services between the United States and the United Kingdom, derives from the terms of the Federal Aviation Act, as understood in the light of its legislative history. See discussion, infra . . . . To the extent that the Act contemplates an international program or activity (e.g., U.S. participation in international aviation), but does not expressly authorize the President to conclude international executive agreements implementing that activity, his independent constitutional powers to conduct foreign relations would supply the legal authority, which, it could be argued, is lacking in the statute.

Agreements thus relying for their legal authority upon a statutory and constitutional basis are not uncommon in U.S. practice and, following a tradition pre-dating the Civil Aeronautics Act, air services agreements such as Bermuda II have been consistently negotiated as bilateral executive agreements.

C. This Court Should Not Substitute Its Judgment For The Executive Branch's Decision To Conclude Bermuda II As An Executive Agreement As Distinct From A Treaty.

Provided that an international agreement is legally authorized by statute, treaty, Constitution, or some combination thereof, the President has substantial discretion to determine whether to conclude that agreement as a treaty or executive agreement. The President exercises this discretion pursuant to guidelines which insure that he "adhere to the customs and practices which have developed since the conclusion of the first executive agreements in the early years of the Republic." However, the sheer multiplicity of considerations which the President employs to make his determination underscores the fact that this Court lacks "judicially discoverable and manageable standards," Baker v. Carr, supra, 369 U.S. at 217, to review his decision or the resulting agreement.

At the outset, defendants note that virtually no case law exists which draws a line between treaties and executive agreements. Henkin, supra [fn. 13, post], 179, cited in Dole v. Carter, Civil Action No. 77–2310 (D. Kan., December 30, 1977) aff'd, No. 77-2117 (10 Cir., December 31, 1977) [444 F. Supp. 1065, mot. den. 569 F.2d 1109]. In view of the complex of factors which governs the President's choice, this paucity of legal precedent is wholly predictable. Given the legal authority to conclude an agreement, the President will evaluate the degree of formality he wishes to attach to the agreement; the substantiality of the terms and commitments subsumed within the agreement; the importance of speed in the conclusion of the agreement; and the importance of flexibility for further amendment. A treaty may bespeak greater magnitude than an executive agreement. On the other hand, the treaty ratification procedure is slow and clearly unsuitable for the type of agreements which require flexibility, speed and ease of amendment. Lissitzyn, The Legal Status of Executive Agreements On Air Transportation— Part I, 17 J. Air L. and Comm. 436, 442-3 (1950). This is particularly true in the case of Bermuda II, which was concluded only days before all air services between the United States and the United Kingdom could have been severely disrupted. The evaluation of each of these factors will reflect the particularized requirements of the negotiations at hand. Thus, agreements of the type at issue in this case have consistently been negotiated as executive agreements precisely because they require the flexibility and ease of modification which the ratification process precludes. Lissitzyn, The Legal Status of Executive Agreements on Air Transportation-Part II, 18 J. Air L. and Comm. 12, 21 (1951).

The Department of State, in its Circular 175, 11 Foreign Affairs Manual 710. et seq., has set forth certain bench marks to guide the President in his de

termination of the form which any particular agreement should take. They

are:

a. The extent to which the agreement involves commitments or risks affecting the Nation as a whole;

b. Whether the agreement is intended to affect State laws;

c. Whether the agreement can be given effect without the enactment of subsequent legislation by the Congress;

d. Past U.S. practice as to similar agreements;

e. The preference of the Congress as to a particular type of agreement; f. The degree of formality desired for an agreement;

g. The proposed duration of the agreement, the need for prompt conclusion of an agreement, and the desirability of concluding a routine or short term agreement; and

h. The general international practice as to similar agreements.

The broadly nonspecific nature of these guidelines, and the nonlegal political nature of many of them, underscore the point that the executive branch must employ a considerable amount of discretion in opting for one form of agreement or another. The negotiation of Bermuda II as an executive agreement constituted an appropriate exercise of that discretion. As the Senate has recognized in a report on international agreements:

It is the prerogative of the Executive to conduct international negotiations; within that power lies the lesser, albeit quite important, power to choose the instrument of international dialogue. [Subcommittee on the Separation of Powers of the Senate Committee on the Judiciary, 93d Cong., 1st Sess., Congressional Oversight of Executive Agreements, 6 (Committee print, 1973)] [Emphasis added.]

See, also, Dole v. Carter, supra, in which the Court of Appeals for the Tenth Circuit found that the President's decision to return the Crown of St. Stephen to Hungary constituted a nonreviewable exercise of his foreign relations power. The Court said:

Art. III, sec. 2, cl. 1 provides that the judicial power extends to cases and controversies. Jurisdiction depends on whether a justiciable controversy is presented. The controversy here is whether the understanding between the United States and Hungary is a treaty or an executive agreement not requiring Senate action ... We decline to enter into any controversy relating to distinctions which may be drawn between executive agreements and treaties. We say only that on the facts before us we find no justiciable controversy. (Slip Op. at pp. 3-4.) [569 F.2d 1110.]

III. The Plaintiffs' Complaint Fails To State A Claim Upon Which

Relief May Be Granted

Given the terms of the Civil Aeronautics Act of 1938, amended without relevant change as the Federal Aviation Act of 1958, the President, through the defendants, properly concluded Bermuda II as an executive agreement.

A. Bermuda II, As A Bilateral Air Services Agreement, Was Properly Negotiated As An Executive Agreement.

The legislative history of the Civil Aeronautics Act, now the Federal Aviation Act, reflects Congress' recognition that air service agreements had been and would continue to be negotiated as executive agreements. Further, the statutory framework itself establishes that Bermuda II does not, as plaintiffs allege, contravene the Act.

1. The Congress has authorized the President to conclude air services agreements as executive agreements.

The legislative history of the Civil Aeronautics Act of 1938 is replete with indications that Congress was aware of the air services executive agreements extant at the time of the legislation, understood their usefulness, and did not intend to enact a statute regulating air transportation which would interfere with the Executive's practice of continuing to conclude such agreements.