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Contemporary Practice of the United States Relating to International Law

Published online by Cambridge University Press:  27 February 2017

Marian Nash (Leich)
Marian Nash (Leich)*
Affiliation:
Office of the Legal Adviser, Department of State
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American Journal of International Law , Volume 89 , Issue 1 , January 1995 , pp. 96 - 130
Copyright
Copyright © American Society of International Law 1995

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References

1 59 Fed. Reg. 49,777–78 (1994).

2 30 Weekly Comp. Pres. Doc. 1556–57 (Aug. 1, 1994). See also 1981–1988 Cumulative Digest 451–54. On November 10, 1994, by Resolution 956, the UN Security Council stated that the objectives of the Trusteeship Agreement had been fully attained and that the applicability of the Agreement was terminated with respect to Palau.

In regard to the Compacts of Free Association between the United States and the Federated States of Micronesia and the Republic of the Marshall Islands (known also as the Freely Associated States), see id. at 442–51.

1 5 Dept. of State, Dispatch 603 (1994).

2 Id. at 579.

Earlier, on August 11, 1994, Attorney General Janet Reno had announced that toward the end of not permitting another Mariel boat lift, U.S.-flagged vessels that appeared to be bound for Cuba might be stopped and boarded by the U.S. Coast Guard or other federal law enforcement officials to determine the intended destination and purpose of travel of each vessel. If federal law enforcement officers found probable cause to believe a vessel was being used in an attempt to bring undocumented migrants to the United States in violation of U.S. law, the vessel would be seized, and administrative or judicial forfeiture action would be instituted in appropriate cases to forfeit it to the U.S. Government. In appropriate circumstances, individuals who violated the law would be criminally prosecuted. Dept. of Justice News Release (Aug. 11, 1994), also in Dept. of State File No. P94 0127-1822/1823.

3 5 Dept. of State, Dispatch at 579–80.

4 Id. at 730.

5 Id. at 325. The United States signed a Memorandum of Understanding with the Government of Jamaica on June 2, 1994, for the Establishment Within the Jamaican Territorial Sea and Internal Waters of a Facility to Process Nationals of Haiti Seeking Refuge Within or Entry to the United States of America. The United States signed a Memorandum of Understanding with the Governments of the United Kingdom and of the Turks and Caicos Islands on June 18, 1994, to Establish in the Turks and Caicos Islands a Processing Facility to determine the Refugee Status of Boat People from Haiti (as amended by exchange of letters of July 13, 1994, to provide for the determination of the eligibility of Haitian nationals for temporary protection in a third country). See Branson McKinley, Haitian Refugee Processing, 5 Dept. of State, Dispatch at 468–69 (testimony by the Acting Director, Bureau of Population, Refugees, and Migration, before the Senate Comm. on Foreign Relations, June 28, 1994).

6 The United States concluded the following agreements to provide safe haven for Haitians: Memorandum of Understanding Between the Government of the United States of America and the Government of Dominica for the Establishment within the Territory of Dominica of Facilities to Provide Temporary Protection under the Auspices of the United Nations High Commissioner for Refugees of Nationals of Haiti Fleeing their Country, with Related Letter, July 10, 1994; Memorandum of Understanding Between the Government of the United States of America and the Government of St. Lucia for the Establishment within the Territory of St. Lucia of Facilities to Provide Temporary Protection under the Auspices of the United Nations High Commissioner for Refugees for Nationals of Haiti Fleeing their Country, July 15, 1994; Memorandum of Understanding between the Government of the United States of America and the Government of Suriname for the Establishment within the Territory of Suriname of Facilities to Provide Temporary Protection for Nationals of Haiti Fleeing their Country under the Auspices of the U.N. High Commissioner for Refugees, August 1, 1994.

The Government of the United States also reached agreement (within the framework of the Panama Canal Treaty) with the Government of Panama, set out in the Arrangement for Humanitarian Relief Operations in the Republic of Panama, signed September 3, 1994, by the U.S. and Panamanian representatives to the Joint Committee established pursuant to the Treaty. Dept. of State Files, L/T.

7 For the transcript of Mr. Gray’s briefing, see Dept. of State File No. P94 0127-1824/1831.

1 For the text, see S. Exec. Rep. R, 96th Cong., 2d Sess. 9 (1980), and 1979 Digest 551. On November 12, 1980, President Carter transmitted the Convention to the Senate for advice and consent to ratification. For his letter of transmittal, a report from Secretary of State Edmund S. Muskie, and a memorandum of law analyzing the Convention by the Office of the Legal Adviser, see 1980 Digest 272–85. The Senate Committee on Foreign Relations held hearings on the Convention in 1988 and 1990 but did not act on it.

2 S. Exec. Rep. No. 38, 103d Cong., 2d Sess. 8–9 (1994).

3 Id. at 11–14.

4 Id. at 3–5.

5 Id. at 51–52.

1 See 72 AJIL 620 (1980); 1979 Digest 440–64.

2 S. Exec. Rep. No. 23, 102d Cong., 2d Sess. 25 (1992).

3 Id. at 6–10.

4 Id. at 10–21.

5 138 Cong. Rec. S4783–84 (daily ed. Apr. 2, 1992).

1 For the Agreement, see Annex to GA Res. 48/263 (July 28, 1994), reprinted in 33 ILM 1309 (1994).

2 S. Treaty Doc. No. 39, 103d Cong., 2d Sess. III–IV (1994).

3 Id. at V–XI.

1 S. Treaty Doc. No. 27, 103d Cong., 2d Sess. 3–6 (1994); see also S. Exec. Rep. No. 36, 103d Cong., 2d Sess. (1994).

2 140 Cong. Rec. S14,475 (daily ed. Oct. 6, 1994).

1 Dept. of State Files L/T. The Agreement entered into force on October 6, 1994.

1 Dept. of State File No. P94 0109-2257.

2 Id., No. P94 0109-2253/2256.

For the Agreed Statement Between the United States of America and the Democratic People’s Republic of Korea, Aug. 12, 1994, see id., No. P94 0109-2258/2259.

For the U.S.-Korean Joint Statement, June 11, 1993, referred to in the first operative paragraph of the Agreed Framework, see 4 Dept. of State, Dispatch 440 (1993).

For a translation of the North-South Joint Declaration on the Denuclearization of the Korean Peninsula, Jan. 20, 1992, see IAEA Doc. GOV/INF/660, Attachment (1992), and Dept. of State File No. P94 0109-2251/2252.

1 [Footnotes 1–10 are reproduced here as they appeared in Assistant Attorney General Dellinger’s letter.] In speaking of the deployment, we should be understood to include, not only the actual deployment begun on September 19, but also the military operation that was planned, and in part initiated, before an agreement with the Haitian military leadership was negotiated on September 18 by former President Jimmy Carter, Senator Sam Nunn and General Colin Powell (the “September 18 agreement”). As the President noted in his televised address of September 18, that agreement “was signed after Haiti received evidence that paratroopers from our 82nd Airborne Division, based at Fort Bragg, North Carolina, had begun to load up to begin the invasion which I had ordered to start this evening.” Text of Clinton’s Address, The Washington Post, Sept. 19, 1994, at A17 [and 5 Dept. of State, Dispatch 611 (1994)].

2 It should be emphasized that this Administration has not yet had to face the difficult constitutional issues raised by the provision of the WPR, 50 U.S.C. §1544(b), that requires withdrawal of forces after 60 days involvement in hostilities, absent congressional authorization.

3 The WPR omits, for example, any mention of the President’s power to rescue Americans; yet even the Comptroller General, an agent of Congress, has acknowledged both that “the weight of authority” supports the position that “the President does possess some unilateral constitutional power to use force to rescue Americans,” and that §1541(c) “does not in a strict sense operate to restrict such authority.” 55 Comp. Gen. 1081, 1083, 1085 (1976). See also Peter Raven Hansen and William C. Banks, Pulling the Purse Strings of the Commander in Chief, 80 Va. L. Rev. 833, 879 (1994) (“[a] custom of executive deployment of armed force for rescue and protection of Americans abroad has developed at least since 1790”); id. at 917–18 (“since 1868 the so-called Hostage Act has authorized and required the President to ‘use such means, not amounting to acts of war, as he may think necessary and proper to obtain or effectuate [the] release’ of American citizens ‘unjustly deprived of [their] liberty by or under the authority of any foreign government.’ … [T]he Hostage Act lends further support to custom and may constitute congressional authorization for at least this limited defensive war power.”).

4 Even though the President has the inherent power to deploy troops abroad, including into situations of hostilities, Congress may, within constitutional limits, regulate the exercise of that power. See, e.g., Santiago v. Nogueras, 214 U.S. 260, 266 (1909) (President had power to institute military government in occupied territories until further action by Congress); The Thomas Gibbons, 12 U.S. (8 Cranch) 421, 427–28 (1814).

5 We recognize, of course, that the WPR provides that authority to introduce the armed forces into hostilities or situations where hostilities are clearly indicated may not be inferred from an appropriation act, unless that statute “states that it is intended to constitute specific statutory authorization within the meaning of this chapter.” 50 U.S.C. §1547(a).

6 See Note, Congress, The President, And The Power To Commit Forces To Combat, 81 Harv. L. Rev. 1771, 1790 (1968) (describing other limited interventions and suggesting conclusion that “‘war’ in the sense of article I, section 8, requiring congressional sanction, does not include interventions to maintain order in weak countries where a severe contest at arms with another nation is [not] likely to result”). Here, of course, there is still less reason to consider the deployment a “war,” since it was undertaken at the request of the recognized democratically-elected government, and not merely to “maintain order.”

7 Moreover, the deployment accorded with United Nations Security Council Resolution No. 940 (1994). There can thus be no question but that the deployment is lawful as a matter of international law.

8 President Grover Cleveland had also opined that a “military demonstration” on the soil of a foreign country was not an “act of war” if it was “made either with the consent of the [foreign] government … or for the bona fide purpose of protecting the imperiled lives and property of citizens of the United States.” 9 Messages and Papers of the Presidents 1789–1897 466 (James Richardson ed., 1898).

9 The Danish King and ministers were in German hands at the time.

10 Although the President found that the deployment would not be without risk, he and his senior advisers had also determined that the United States would introduce a force of sufficient size to deter armed resistance by the Haitian military and thus to hold both United States and Haitian casualties to a minimum. The fact that the United States planned to deploy up to 20,000 troops is not in itself dispositive on the question whether the operation was a “war” in the constitutional sense, since the very size of the force was designed to reduce or eliminate the likelihood of armed resistance.

* Dept. of State File No. P94 0109-2260/2266.

1 We express no views here on the legality of the military deployment in Haiti that has actually taken place, pursuant to former President Carter’s September 18, 1994 agreement with the Haitian military.

2 As footnote 5 of your opinion properly notes, in section 8(a)(1) of the War Powers Resolution, 50 U.S.C. §1547(a)(1), Congress specified that the President may not infer authority to introduce U.S. armed forces into hostilities or imminent hostilities from an appropriations act, unless that statute expressly states that it was intended specifically to authorize such an introduction of armed forces. September 27 OLC Letter at 4, n.5.

3 We express no view on whether President Aristide in fact “invited” the invasion that was contemplated, but not executed, in this case. We note, however, that your letter grants legal significance to President Aristide’s actions, not to the Carter-Cedras agreement of September 18, which in fact averted the invasion.