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tively qualify or modify the application of the treaty and the relations between the reserving state and the other states party to the treaty. The condition, in effect, adds something of substance to the treaty or takes something of substance from it, and gives notice to other states concerned that the reserving state will not, in that respect, give effect to the treaty except on such conditions.

As noted above, the text of the treaty need not be amended explicitly in order to effect an amendment. An implicit, but equally effective, amendment may be effected through a reservation or understanding (see below). The Senate may provide by reservation, for example, that a certain provision will be without force and effect; such a reservation would be the functional legal equivalent of an amendment to the text of the treaty which strikes out the provision line-by-line

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(2) "Understanding." An understanding is a statement which is not intended to modify or limit any of the provisions of the treaty in its international operation but is intended merely to clarify or explain or deal with some other matter incidental to the operation of the treaty in a manner other than a substantive reservation. Sometimes an understanding is no more than a statement of policies or principles or perhaps an indication of general procedures for carrying out provisions of the treaty. Understandings are also on occasion called "interpretations."

(3) "Declarations" and other statements. These are used most often when it is considered essential or desirable to give notice of certain matters of policy or principle, without an intention of derogating from the substantive rights or obligations stipulated in the treaty. "Explanations," "clarifications," and "recommendations" are other designations which occasionally have been used.

Whatever label is attached to what is being done, it is the substance, and not the designation, that determines whether the material. is a reservation or a declaration short of a reservation. Thus, a simple understanding, found on analysis to alter the substantive effect of the treaty, may in fact be a reservation. Conversely, material designated a "reservation" may in fact not modify or limit the substantive effect of the treaty and may thus constitute only an understanding. An amendment to the text of the treaty may, accordingly, constitute a reservation or something less, since it may or may not alter the treaty's substantive effect.

Whether material constitutes a reservation is determined by the non-reserving signatory. An amendment to the treaty or to the resolution of advice and consent is thus analogous to a counter-offer in the law of contracts. It may, if the "offeree" so chooses, require that negotiations be reopened, be rejected outright, or, if the offeree accepts it, bring a legally different agreement into effect. The addition of material which Panama chooses to regard as a reservation-or an amendment to the treaty which in the judgment of Panama alters its substantive effect-would therefore give rise to three options on Panama's part: (1) it could reject the modification, in which case. the treaty would not take effect; (2) it could request that negotiations be reopened, in which case additional modifications could be

proposed by Panama as a quid pro quo; or (3) it could accept the modification.

INTERNATIONAL LEGAL EFFECT

The act of ratification is not complete until "instruments of ratification" are exchanged. In order to be given international legal effect, amendments made by the Senate, or reservations, understandings, or declarations, etc., added by the Senate, must be incorporated in the instrument of ratification given to Panama. If they are so incorporated they will, as noted above, be of identical legal force and effect; the particular denomination attached to each by the United States will be legally irrelevant, since the substance of each will have been accepted by Panama.

In short, if the Senate elects to alter the substantive effect of the treaties, the label under which it chooses to do so and there are many possibilities-will under domestic and international law be immaterial; each modification, if accepted by Panama, will have the same force and effect as the treaty itself. Whether Panama accepts is, of course, entirely within its discretion and the designation used by the Senate may be taken into account.

Cong. Rec., Vol. 124, No. 33 (daily ed., Mar. 9, 1978), pp. S3312-S3313. In regard to amendments by the Senate, see, further, this Ch., § 3, post. In regard to the Senate's examination and consideration of implementing agreements under the Panama Canal Treaty, see, further, this Ch., § 5, post.

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Observance, Application, and Interpretation

Application

Private Right of Action

In American Jewish Congress et al. v. Vance, 575 F.2d 939 (D.C. Cir. 1978), an association of Jewish citizens and six of its officials and members had sued in their own behalf and as representatives of all other American citizens of Jewish religion, ancestry, and identity, to obtain a declaration that the effectuation by the defendants, cabinet officers, and subordinate officials of the United States Government, of the Joint Statement on Saudi Arabian-United States Cooperation, June 8, 1974, was unconstitutional, and to obtain injunction and mandamus against any further implementation thereof.

The plaintiffs had alleged that effectuation of further agreements and programs thereunder with the Government of Saudi Arabia, whose exclusionary policies purportedly discriminated against American Jews, violated the First and Fifth Amendments and article VI of the Constitution. The United States District Court for the District of Columbia had granted the defendants' motion to dismiss, on the grounds that the case presented a nonjusticiable political question, and thereafter denied the plaintiffs' motion to vacate the order of dismissal. On appeal, the United States Court of Appeals for the

D.C. Circuit affirmed, on the grounds that the plaintiffs lacked standing.

Excerpts from the opinion of Circuit Judge Edward A. Tamm, April 21, 1978, follow:

(footnotes omitted)

The concepts of standing and political question are separate aspects of justiciability, and either the absence of standing or the presence of a political question precludes a Federal court, under article III of the Constitution, from hearing or deciding the case presented. Flast v. Cohen, 392 Ú.S. 83, 95, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968); accord, Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 215, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974). There is at present no fixed rule as to the order of analysis of these elements of justiciability. Id. at 215 n.5, 94 S.Ct. 2925. However, we believe that when both standing and political question issues are before the court and neither has been resolved definitively in a context readily applicable to the case presented, the court should determine the question of standing first. An analysis of standing requires inquiry only into limitations placed on Federal judicial power by article III. The political question issue, on the other hand, requires not only a determination of article III limitations, but also an analysis of the separation of powers doctrine which inevitably carries the inquiry into other articles of the Constitution. See Flast v. Cohen, 392 U.S. at 100-01, 88 S.Ct. 1942; Baker v. Carr, 369 U.S. 186, 210-11, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). We therefore believe that in this case it is more prudent initially to determine the issue of the standing of those who are seeking to invoke the jurisdiction of the Federal court.

As citizens per se, plaintiffs clearly lack standing. The only injury to plaintiffs as citizens that can be gleaned from the complaint is the alleged general unconstitutional conduct of the defendants. However, the proper observance of constitutional limitations by government officials is an interest shared by all members of the American public. Any injury to that interest is necessarily abstract and lacking in the concreteness required to confer standing. Ex parte Levitt, 302 U.S. 633, 634, 58 S.Ct. 1, 82 L.Ed. 493 (1937); accord, Schlesinger v. Reservists Committee to Stop the War, 418 U.S. at 220, 94 S.Ct. 2925. "Until a judicially cognizable injury is shown no other inquiry is relevant to consideration of citizen standing." Id. at 227 n.16, 94 S.Ct. at 2935.

Plaintiffs have also failed in their complaint to establish standing as taxpayers. In Flast v. Cohen, 392 U.S. at 102-03, 88 S.Ct. 1942, the Supreme Court held that, in certain limited circumstances, a plaintiff may have standing to challenge Federal action based on his status as a United States taxpayer. In those cases, the plaintiff must be challenging a congressional action under the taxing and spending power of article I, section 8, of the Constitution, and must allege contravention of a specific constitutional limitation on that power.

Id.; see United States v. Richardson, 418 U.S. 166, 175, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974). Here, although plaintiffs are challenging the implementation of the Joint Statement as violative of a specific constitutional prohibition on the taxing and spending power, the only other allegation connected with their status as taxpayers is that defendant executive officials have expended governmental funds to effectuate cooperative programs with Saudi Arabia. Such allegations falter in the first stage of the Flast test, because they are directed at executive action rather than at a congressional enactment under article I, section 8. See Schlesinger v. Reservists Committee to Stop the War, 418 U.S. at 228, 94 S.Ct. 2925. Thus, the general rule that a Federal taxpayer's interest in Treasury moneys is too indeterminate, remote, and abstract to support standing is applicable here. Frothingham v. Mellon, 262 U.S. 447, 486-89, 43 S.Ct. 597, 67 L.Ed. 1078 (1923); see United States v. Richardson, 418 U.S. at 177, 94 S.Ct. 2940

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The article III "case or controversy" requirement encompasses more than merely an injury to the plaintiff. The plaintiff must "establish that, in fact, the asserted injury was the consequence of the defendants' actions, or that prospective relief will remove the harm." Warth v. Seldin, 422 U.S. at 505, 95 S.Ct. at 2208; see Linda R. S. v. Richard D., 410 U.S. 614, 618-19, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973). It is in these areas of causation and redressability that the allegations of plaintiffs Kaplan and Watkins are deficient.

*

Here, plaintiffs Kaplan and Watkins have alleged that, because of their religion and identity, they have been denied certain specific economic opportunities arising under the cooperative programs with Saudi Arabia, although they are qualified to participate therein and wish to do so. To remedy this injury, they seek broad equitable relief prohibiting defendants from further implementing the Joint Statement or any other programs with Saudi Arabia that discriminate against American Jews.

There is no doubt that the termination of the cooperative programs would eliminate any possibility of participation by defendants in the discriminatory practices of the Saudi Arabian Government. At the same time, however, such an action would eliminate the very economic advantages in which plaintiffs Kaplan and Watkins have alleged an interest and of which they have allegedly been deprived. There has thus been no showing that the granting of the broad relief requested would properly redress the specific injury alleged by Kaplan and Watkins, or that their individual needs require such relief. . . . The requested remedy in this case is not directed at the alleged injury to Kaplan and Watkins in being denied specific economic opportunities because of their religion. Instead, it is directed at the subjective "chill" that we have already found too abstract an injury to permit invocation of the Federal court's remedial powers.

The allegations of the complaint here do not meet either the causation or redressability requirements of standing, and plaintiffs Kaplan and Watkins have therefore failed to show their right to invoke the power of the Federal court. Because the standing of the

American Jewish Congress and the class purportedly represented herein depends upon the ability of the individual plaintiffs to seek relief, and because none of the individual plaintiffs has standing, I believe that this case is nonjusticiable under article III of the Constitution.

575 F.2d 939, 943–944, 946-947.

The Joint Statement on Saudi Arabian-United States Cooperation, June 8, 1974 (TIAS 7974; 25 UST 3115; entered into force June 8, 1974), included agreement on cooperation in the fields of economics, technology, industry, and defense. See, further, the 1974 Digest, pp. 519–520.

In Smith et al. v. Eagleton et al., 455 F. Supp. 403 (W.D. Mo., S.D. 1978), residents of southern Missouri sued the two United States Senators from Missouri, Thomas Francis Eagleton and John Claggett Danforth, challenging the defendants' actions during the ratification of the Panama Canal Treaties. They also alleged that the defendants had violated title 42, United States Code, § 1986, which confers a right of action for neglect to prevent a conspiracy to interfere with civil rights. The defendants moved to dismiss, asserting that the plaintiffs lacked standing to bring the action, and also asserting their immunity from suit under the speech and debate clause, article I, section 6, clause 1, of the Constitution. District Judge William R. Collinson sustained their motion on both grounds, and dismissed the action on August 15, 1978.

Excerpts follow from that portion of the Court's memorandum opinion which dealt with the powers of courts in regard to negotiation and implementation of treaties, and also with the plaintiffs' lack of standing in the instant case:

(footnotes selectively omitted)

*

Despite plaintiffs' evident dissatisfaction with the Panama Canal Treaties, it is well settled that this Court has no power to interfere with either their negotiation or implementation. United States v. Curtiss-Wright Corp., 299 U.S. 304, 318-19, 57 S.Ct. 216, 220, 81 L.Ed. 255 (1936), states the principles to be applied:

"[T]he investment of the Federal Government with the powers of external sovereignty did not depend on the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties. to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the Federal Government as necessary concomitants of nationality."

In short, the power to negotiate treaties and to decide upon their terms is lodged exclusively with the President, subject only to the approval powers lodged in the Senate.1 Once it is determined that

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