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Contemporary Practice of the United States Relating to International Law

Published online by Cambridge University Press:  27 February 2017

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Extract

On June 20, 1994, Ambassador Harriet C. Babbit, the U.S. Permanent Representative to the Organization of American States, deposited on behalf of the U.S. Government the instrument of ratification of the “Protocol of Washington,” adopted on December 14, 1992, by the Sixteenth Special Session of the General Assembly of the Organization of American States and signed by the United States on January 23, 1993, and the “Protocol of Managua,” adopted by the Nineteenth Special Session of the OAS General Assembly on June 10, 1993, and signed that day by the United States. The U.S. Senate had given its advice and consent to ratification of the Protocols on May 17, 1994, with two-thirds of the Senators present and concurring.

Type
Research Article
Information
American Journal of International Law , Volume 88 , Issue 4 , October 1994 , pp. 719 - 765
Copyright
Copyright © American Society of International Law 1994

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References

page 719 note 1 S. Treaty Doc. No. 22, 103d Cong., 2d Sess. (1994).

page 719 note 2 Id. at III.

page 720 note 3 Id. at V–VII.

page 721 note 4 S. Exec. Rep. No. 28, 103d Cong., 2d Sess. 2–3 (1994).

page 721 note 1 Opened for signature Mar. 7, 1966, 660 UNTS 195, reprinted in 5 ILM 352 (1966).

page 721 note 2 S. Exec. Rep. C, 95th Cong., 2d Sess. (1978); see also 72 AJIL 620 (1978).

page 726 note 3 5 Dept. of State, Dispatch 354–57 (1994).

The Legal Adviser referred to other issues “about which the Senate should be aware but which do not warrant inclusion in the Senate’s resolution of advice or consent or in the instrument of ratification as specific reservations, understandings, or [declarations].” These issues had also been included in the detailed legal analysis sent to the committee on April 26, 1994. “[P]erhaps the most noteworthy,” he said, was Article 2(l)(c) of the Convention, which requires states parties to “take effective measures to review governmental, national and local policies … which have the effect of creating or perpetuating racial discrimination.”

The precise scope of a state party’s obligation thereunder was not clear from the negotiating history of the Convention, the Legal Adviser said. He believed, however, that the provision did not require the invalidation of every race-neutral law, regulation, or practice that caused some degree of adverse impact on racial groups. In this regard, Mr. Harper pointed to General Recommendation XIV of the Committee on the Elimination of Racial Discrimination, which stated: “In seeking to determine whether an action has an effect contrary to the Convention, it will look whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national origin.” He found the Committee’s use of the term “unjustifiable disparate impact” indicative of its view that the Convention reaches “only those race-neutral practices that both create statistically significant racial disparities and that are unnecessary.” The Legal Adviser considered this view to be consistent with the standards for proving disparate impact under title VII, the title VI implementing regulations and the Fair Housing Act, as well as with the requirements for proving a violation of the Equal Protection Clause or of the federal civil rights statutes. Id. at 357.

page 727 note 4 The committee’s report, issued June 2, 1994, included Acting Secretary Talbott’s letter, dated April 26, 1994, enclosing the Department of State’s analysis of Convention requirements against relevant provisions of U.S. law and an explanation of its suggested reservations, understandings and declarations. S. Exec. Rep. No. 29, 103d Cong., 2d Sess. 9 (1994).

page 728 note 5 140 Cong. Rec. S7634 (daily ed. June 24, 1994).

page 728 note 1 Dept. of State File No. P94 0077-0611/0612.

page 729 note 2 Id., Nos. P94 0077-0613/0614.

In regard to President Clinton’s announcement of Feb. 3, 1994, see 88 AJIL 521 (1994). For the statement issued by the Vietnamese Ministry of Foreign Affairs on Feb. 4, 1994, see Foreign Broadcast Information Service (FBIS), East Asia Service-94-024, Feb. 4, 1994.

page 730 note 3 Dept. of State File No. P94 0077-0615/0616.

page 731 note 4 Id., No. P94 0077-0617.

page 732 note 1 59 Fed. Reg. 37,121–22 (1994).

page 732 note 2 Id. at 35,607.

page 733 note 3 Id.

page 733 note 1 For the draft Agreement, see UN Doc. A/48/950 (1994). See also Law of the Sea Forum: The 1994 Agreement on Implementation of the Seabed Provisions of the Convention on the Law of the Sea, supra p. 687.

page 734 note 2 140 Cong. Rec. S8095 (daily ed. June 30, 1994).

page 738 note 3 Id. at S8095–97.

page 739 note 1 Dept. of State File No. P90 0004-1637/1638.

page 739 note 2 Id., No. P90 0004-1631/1636. The settlement agreement of March 11, 1994, infra note 7, deprived the Memorandum of Understanding of effect.

page 739 note 3 Agreement Concerning Air Services [Bermuda II], July 23, 1977, U.S.-UK, 28 UST 5367; as amended Apr. 25, 1978, 29 UST 2680; as amended Dec. 27, 1979, 32 UST 524; as amended Dec. 4, 1980, 33 UST 655; and as further amended Feb. 20, 1985, and May 25, 1989, and by the settlement agreement, Mar. 11, 1994, Dept. of State Files L/T.

page 739 note 4 The tribunal consisted of Professor Isi Foighel of Denmark as President and Arbitrators Fred Fielding, Esq., of the United States, and Jeremy Lever, Q.C., of the United Kingdom, with G. W. Maas Geesteranus of the Netherlands serving as Registrar and the Permanent Bureau of the Permanent Court of Arbitration providing administrative support.

page 739 note 5 Award of November 30, 1992, Dept. of State File Nos. P94 0020-1961/2369, P94 0022-2099/2101. The tribunal’s Rules of Procedure, based upon the Rules of Procedure of the International Centre for Settlement of Investment Disputes, and edited by the tribunal’s Registrar, are set out in Appendix III to the award, id., Nos. P94 0020-2357/2366, P94 0022-2099/2101.

page 740 note 6 For an excerpt of the award, see infra p. 741.

page 740 note 7 For the exchange of notes constituting the settlement agreement, see Dept. of State Files as follows: the note of British Ambassador Sir Robin Renwick to Secretary of State Warren Christopher, No. P94 0027-1003/1008; Attachment 1, being the replacement definition of “user charge” under Article 1(o) of the Bermuda II Agreement and replacement Article 10, “User Charges,” of Bermuda II, id., No. P94 0027-1009/1011; Attachment 2, id., No. P94 0027-1012/1014; Attachment 3, id., No. P94 0027-1015/1018; and Attachment 4, id., No. P94 0027-1019. For the U.S. note, signed by Legal Adviser Conrad K. Harper for the Secretary of State, see id., No. P94 0027-1020/1026.

page 744 note 8 Award of November 30, 1992, supra note 5. See also John H. McNeill, International Agreements: Recent U.S.-UK Practice Concerning the Memorandum of Understanding, infra p. 821.

page 745 note 1 58 Fed. Reg. 31,327 (1993).

page 746 note 2 5 Dept. of State, Dispatch 345–46 (1994).

page 746 note 3 Report to Congress Concerning Renewal of Waiver Authority for the People’s Republic of China, Dept. of State Staff Secretariat Log No. 9412493. In a memorandum for the Secretary of State, Presidential Determination No. 94-26 (June 2, 1994), the President determined, pursuant to 1402(d)(1) of the Trade Act, 19 U.S.C. §2432(d)(1), that the further extension of the waiver authority granted by §402(c) of the Act would substantially promote the objectives of §402, and that the continuation of the waiver applicable to the People’s Republic of China would substantially promote those objectives. 59 Fed. Reg. 31,103 (1994).

page 746 note 4 For President Clinton’s letter to Congress and the report, see 29 Weekly Comp. Pres. Doc. 984 (May 31, 1993).

page 747 note 5 58 Fed. Reg. at 31,327–28.

On August 7, 1992, the United States and China signed the Memorandum of Understanding Between the United States of America and the People’s Republic of China on Prohibiting Import and Export Trade in Prison Labor Products. On March 14, 1994, during Secretary Christopher’s visit to Beijing, the parties signed a joint statement, “Statement of Cooperation on the Implementation of the Memorandum of Understanding Between the United States of America and the People’s Republic of China on Prohibiting Import and Export Trade in Prison Labor Products,” which clarified their respective obligations and expedited compliance with the Memorandum of Understanding. Report to the Congress, supra note 3, at 4–5.

page 748 note 6 5 Deft. of State, Dispatch, at 346–47.

page 748 note 1 S. Treaty Doc. No. 25, 103d Cong., 2d Sess. (1994). The Convention and the three Protocols are reprinted in 19 ILM 1524 (1980).

page 749 note 2 S. Treaty Doc. No. 25, supra note 1, at III–IV.

page 751 note 3 Id. at V–VII.

page 753 note 4 Id. at 1–4.

page 753 note 1 See 88 AJIL 323 (1994).

page 753 note 2 40 Fed. Reg. 16,187 (1975). In the preamble to Executive Order No. 11,850, the United States renounced, as a matter of national policy, inter alia:

first use of riot control agents in war except in defensive military modes to save lives such as:

(a) Use of riot control agents in riot control situations in areas under direct and distinct U.S. military control, to include controlling rioting prisoners of war.

(b) Use of riot control agents in situations in which civilians are used to mask or screen attacks and civilian casualties can be reduced or avoided.

(c) Use of riot control agents in rescue missions in remotely isolated areas, of downed aircrews and passengers, and escaping prisoners.

(d) Use of riot control agents in rear echelon areas outside the zone of immediate combat to protect convoys from civil disturbances, terrorists and paramilitary organizations.

Section 1 of Executive Order No. 11,850 required the Secretary of Defense to take all necessary measures to ensure the prohibition of the use by U.S. Armed Forces of any RCAs and chemical herbicides in war, unless approved by the President in advance. Section 2 required the Secretary of Defense to prescribe the necessary rules and regulations to ensure that U.S. Armed Forces observed the announced national policy.

page 754 note 3 S. Treaty Doc. No. 21, 103d Cong., 1st Sess. (1993). The Conference on Disarmament and its predecessor bodies had negotiated the Convention between August 1968 and September 1992. The UN General Assembly endorsed (“commended”) it by GA Res. 47/39, adopted without a vote on November 30, 1992, and it was opened for signature on January 13, 1993.

page 754 note 4 140 Cong. Rec. S7635 (daily ed. June 24, 1994).

page 756 note 1 5 Dept. of State, Dispatch 32–33 (Supp. 1, 1994).

For Charter for American-Russian Partnership and Friendship, signed at the U.S.-Russian Summit Meeting on June 17, 1992, see 3 id. at 490 (1992), reprinted in 31 ILM 783 (1992). On the same day President George Bush and President Yeltsin concluded the Agreement Concerning the Safe and Secure Transportation, Storage and Destruction of Weapons and the Prevention of Weapons Proliferation, with implementing agreements, which the White House Office of the Press Secretary described as providing “a legal framework for the transfer of up to $400 million of Department of Defense funds authorized by U.S. Public Law 102-229 [228] … [and as being] the basic vehicle for providing Nunn-Lugar assistance to Russia for the transport, safeguarding, and destruction of nuclear, chemical, and other weapons of the former Soviet Union,” 3 Dispatch, supra, at 496. On the same day, the two Presidents also signed the Joint Understanding on Reductions in Strategic Offensive Arms, id. at 492. See also 86 AJIL 809 (1992).

For the Vancouver Declaration, Apr. 4, 1993, see 4 Dispatch 1 (Supp. 2, 1993). The U.S.-Russian Joint Commission on Energy and Space (the Gore-Chernomyrdin Commission) was established as a result of agreement between the two Presidents at the Vancouver Summit Meeting. For a Fact Sheet on the commission, see 5 id. at 2 (1994).

page 757 note 2 5 Dept. of State, Dispatch 5 (Supp. 1, 1994). For the NATO Declaration, also issued at the meeting of the North Atlantic Council, Jan. 11, 1994, see id. at 7.

page 757 note 3 3 id. at 935 (1992). The inaugural meeting of the NACC was held at Rome on December 20, 1991. For the joint statement of Secretary Baker and Minister Genscher, see 2 id. at 736 (1991).

page 758 note 4 5 id. at 25 (Supp. 1, 1994).

page 760 note 5 Id. at 19–20. For the statement of the Ukrainian Parliament on the non-nuclear status of Ukraine, Oct. 24, 1991, see Foreign Broadcast Information Service (FBIS), SOV–91–207, at 51 (Oct. 25, 1991).

The Nunn-Lugar Program, referred to in the Trilateral Statement, was established under the Soviet Nuclear Threat Reduction Act of 1991, Pub. L. No. 102-228, tit. II, 105 Stat. 1691, 1693, as amended by Former Soviet Union Demilitarization Act of 1992, Pub. L. No. 102-484, National Defense Authorization Act for Fiscal Year 1993, div. A, tit. XIV, 106 Stat. 2315, 2563 (1992) (22 U.S.C. §2552 note, and 22 U.S.C. §5901 et seq.). See also 22 U.S.C. §5951 et seq.

page 761 note 6 5 Dept. of State, Dispatch 25–26 (Supp. 1, 1994).

page 762 note 7 Dept. of State File No. P94 0050-1928/1933.

page 763 note 8 Id., No. P94 0050-1934/1939. A Protocol on HEU Transparency Arrangements in Furtherance of the Memorandum of Understanding of September 1, 1993, signed March 18, 1994, specified further monitoring activities at named installations in the territory of each party. Id., No. P94 0050-1940/1945.

The U.S. Enrichment Corporation, mentioned in the 1994 White House statement on conversion of highly enriched uranium, was created under title IX of the Energy Policy Act of 1992, Pub. L. No. 102-486, 106 Stat. 2782, 2924 (codified at 42 U.S.C. §2297 et seq.).

page 765 note 9 Dept. of State File No. P94 0049-0649/0651. The United States and Ukraine have concluded the following agreements related to arms control: the [“umbrella”] Agreement Concerning Assistance to Ukraine in the Elimination of Strategic Nuclear Arms, and the Prevention of Proliferation of Weapons of Mass Destruction, Oct. 25, 1993; Agreement Between the Department of Defense of the United States of America and the Ministry of Defense of Ukraine Concerning the Provision of Material, Services, and Related Training to Ukraine in Connection with the Elimination of Strategic Nuclear Arms, with annexes, Dec. 5, 1993 (two amendments to Annex C were signed Dec. 18, 1993, and an amendment to the Agreement was signed Mar. 21, 1994); Agreement Between the Department of Defense of the United States of America and the Expert and Technical Committee of the Cabinet of Ministers of Ukraine Concerning the Provision of Assistance to Ukraine Related to the Establishment of an Export Control System to Prevent the Proliferation of Weapons of Mass Destruction from Ukraine, Dec. 5, 1993 (an amendment thereto was signed Mar. 21, 1994); Agreement Between the Department of Defense of the United States of America and the Ministry of Defense of Ukraine Concerning the Provision to Ukraine of Emergency Response Equipment and Related Training in Connection with the Removal of Nuclear Warheads from Ukraine for Destruction in the Course of the Elimination of Strategic Nuclear Arms, with annex, Dec. 18, 1993; Agreement Between the Department of Defense of the United States of America and the Ministry of Defense of Ukraine Concerning the Provision to Ukraine of Material and Services for the Establishment of a Govemment-to-Government Communications Link, with annexes, Dec. 18, 1993; Agreement Between the Department of Defense of the United States of America and the Ukrainian State Committee on Nuclear and Radiation Safety Concerning Development of State Systems of Control, Accounting, and Physical Protection of Nuclear Materials to Promote the Prevention of Nuclear Weapons Proliferation from Ukraine, Dec. 18, 1993 (an amendment thereto was signed Mar. 21, 1994); Agreement Between the Department of Defense of the United States of America and the Ministry of Machine Building, Military-Industrial Complex and Conversion of Ukraine Concerning the Conversion of Enterprises of the Military-Industrial Complex, Mar. 21, 1994.

page 765 note 10 Agreement Concerning Emergency Response and the Prevention of Proliferation of Weapons of Mass Destruction, Oct. 22, 1992; Agreement Amending the Agreement of October 22, 1992, Concerning the Provision of Assistance Related to the Establishment of Export Control Systems to Prevent the Proliferation of Weapons of Mass Destruction from the Republic of Belarus, Apr. 29, 1993 (as further amended July 22, 1993); Agreement Concerning the Conversion of Military Technologies and Capabilities into Civilian Activities, July 22, 1993; Agreement Concerning the Environmental Restoration of Former Strategic Rocket Forces Facilities and Sites to Promote the Prevention of Proliferation of Weapons of Mass Destruction, July 22, 1993; Memorandum of Understanding and Cooperation on Defense and Military Relations, Oct. 28, 1993.